ifc£j>K  a.  ^:^Z^>^  


\ 


i 


I 


ON  THE 


PENITENTIARY  SYSTEM 

IN  THE  , 

UXlTEl)  STATES, 

PREPARED  UNDER  A  RESOLUTION  OF  THE 

SOCIETY  FOR  THE  PREVENTION  OF  PAUPERISM, 

IN  THE 

CITY  OF  ME  FF-  YORK. 

8ai»l«l»»l»|»ig 
NEW-YORK : 

PRINTED  BY  MAHLON  DAY, 
No.  372,  Fkarl-Stbset. 

1822. 


5oB 


The  Chairman  of  the  Committee  appointed  to  present  a 
•  General  View  of  the  Pknitentiary  System,  as  it 

now  exists  in  the  United  States^  respectfully  presents 

the  following 

REPORT: 

The  importance,  as  well  as  the  intrinsic  diflSculties  of  the  sub- 
ject, committed  to  the  research  and  fidelity  of  the  Committc , 
have  subjected  them  to  formidable  embarrassments  in  every 
stage  of  their  investigation.  A  voluntary  association  of  indi- 
viduals, to  ascertain  the  operation  of  municipal  ordinances  and 
regulations,  and  to  trace  out  the  effects  and  detect  the  errors  of 
various  systems  of  criminal  law,  throughout  a  country  of  vast 
extent,  act  under  restraints  not  incident  to  boards  of  inquiry 
clothed  with  public  authority,  sustained  by  adequate  means,  and 
acting  under  auspices  compatible  with  the  moral  importance  of 
the  undertaking.  But  until  the  legislatures  of  the  different  states, 
and  the  constituted  authorities  of  the  country,  encourage  and 
support  those  regular  systems  of  examination  and  observance, 
that  are  competent  to  correct  and  prevent  public  evils  ;  until 
they  learn  to  avoid  the  errors  of  other  governments  and  other 
countries,  (a)  in  remaining  inactive  and  indifferent,  until  awa- 
kened to  a  sense  of  duty  by  the  loud  cries  of  deep  and  compli- 
cated grievances ;  we  must  repose  our  hopes  and  rest  our 
confidence,  on  the  philanthropy,  the  patriotism,  and  the  zeal  of 
individuals. 


(a)  Bishop  Burnet,  in  bis  history  of  his  own  times,  more  than  et  tentury  sigd. 
appealed  to  the  attention  of  the  House  of  Commons,  concerning  the  Poor  Laws 
of  England.  He  inculcated  the  necessity  of  their  immediate  correction.  His 
voice  was  not  heard.  The  paupers  of  Great-Britain  now  co^t  h»r  not  far  from 
|60,000,000  aiujually.  Vi«le  vot.  iv.  p.  W5. 


By  the  Penitentiary  System,  as  treated  of  in  this  Report,  the 
Committee  would  refer  to  tlie  means  resorted  to  in  the  different 
States  of  the  Union,  to  prevent  crimes  and  misdemeanors,  to 
reform  convicts,  and  to  promote  public  security.  These  means 
include  the  adoption  of  Criminal  Codes,  the  erection  of  prisons, 
and  the  confinement  of  convicts  to  hard  labour  within  their 
precincts. 

The  history  of  nations  teaches  us,  that  the  welfare  of  em- 
pires may  be  frequently  endangered  by  sudden  revolutions  in 
popular  opinion,  on  subjects  which  embrace  the  general  and 
individual  relations  of  society.  Wild  and  speculative  doctrines 
will  be  occasionally  started  that  strike  at  the  abrogation  of  ex- 
isting systems  of  civil  polity,  and  silently  and  rapidly  acquire 
strength  and  stability,  until  the  number  and  zeal  of  their  vota- 
ries become  fob  formidable  for  the  effectual  appeals  of  reason 
and  experience.  A  period  has  arrived  in  this  country,  which 
fully  illustrates  this  position.  Without  a  due  regard  to  facts  and 
reflection,  there  are  many  in  the  United  States,  who  advocate 
the  renunciation  of  the  Penitentiary  System,  and  consequently 
a  change  in  our  Criminal  Jurisprudence  that  will  increase  the 
severity  of  its  character.  Abstaining  from  all  strictures,  at  pre- 
sent, on  the  tendency  and  singularity  of  such  an  opinion,  we 
would  remark,  that  communities  seldom  retrace  their  steps  in 
the  trials  of  experience,  until  they  reach  their  last  extremity ; 
and  whether  it  is  now  decided  to  renounce  or  to  retain  this  Sys- 
tem, the  determination  will  probably  settle,  for  ages,  the  spirit  of 
our  laws,  in  relation  to  crimes  and  punishments.  It  may  there- 
fore be  expedient  for  the  Committee,  in  the  first  place,  briefly 
to  advert  to  the  rise  of  the  Penitentiary  System  in  the  United 
States.  Previous,  however,  to  doing  thi§,  they  feel  constrained 
to  make  a  few  reflections  on  a  subject  intimately  connected  with 
it — the  lamentable  neglect  of  mankind,  in  the  difierent  periods 
of  human  society,  concerning  the  punishment  and  prevention 
of  crimes. 

Unfortunately  for  the  deepest  interests  of  humanity,  and  for 
the  moral  character  of  nations,  Criminal  Jurisprudence  has  not 


6 


attmcted  the  attention,  and  commanded  tbat  anxiety  which  its 
importance  has  demanded.  This  fact  is  visible  in  the  history 
of  every  civilized  people,  both  of  ancient  and  modern  times. 
Wars  have  been  waged,  and  vast  and  bloody  revolutions  accom- 
plished, for  the  acquisition  and  establishment  of  political  rights ; 
laws  have  been  invented  and  improved,  from  one  age  to  ano- 
ther, for  the  security  of  property  and  the  enjoyment  of  civil  im- 
munities ;  moral  and  relative  obligations  have  been  defined  with 
a  nicety  that  strongly  marks  the  perfection  of  human  discrimi- 
nation ;  but  that  science  which  cautiously  and  successfully  gra- 
duates punishments  to  offences,  and,  in  the  greatest  possible  de- 
gree, prevents  the  perpetration  of  crimes,  is  still  in  its  infancy. 

In  arbitrary  governments,  where  the  arm  of  power  is  the 
rule  of  law,  despotism  never  pauses  in  her  march  over  the  lives 
and  fortunes  of  submissive  millions,  to  adjust  a  scale  of  punish- 
ment to  suit  the  atrocity  of  guilt,  or  to  provide  for  the  reforma- 
tion of  character.  We  may  look  in  vain  among  the  populous 
and  refined  nations,  that  once  flourished  in  the  fairest  portions 
of  Asia,  for  any  exceptions  to  this  remark  worthy  of  conside- 
ration. Ancient  India,  so  renowned  for  her  civilization,  her 
wealth,  her  ingenuity,  her  arts  and  her  sciences,  and  filled,  as 
she  is,  with  the  wrecks  of  power  and  splendor,  was  cruel  in  her 
administration  of  justice  ;  and  one  of  the  earliest  historians 
induces  us  to  believe,  that  crimes  were  punished  with  that 
severity  that  destroys  all  proportion  between  the  punishment 
and  the  aggression.*  The  laws  of  the  most  polished  states  of 
Greece,  not  excepting  Athens,  when  taken  as  a  body,  were 
grossly  defective ;  (6)  and  during  the  most  illustrious  ages  of 

*  '•  Punishment"  (according  to  a  striking  personification  in  the  Hindoo  Code) 
'•  is  the  magistrate  ;  punishment  is  the  inspirer  of  terror ;  punishment  is  the 
nourisher  of  subjects ;  punishment  is  the  defender  from  calamity  ;  punishment 
is  the  guardian  of  those  who  sleep ;  punishment,  with  a  black  aspect  and  a  red  eye, 
terrifiei  the  guUly  "   Rob.  Disqui.  on  India. 

(6)  The  Spartans  were  a  martial  and  sanguinary  people,  and  under  the  sem- 
blanae  of  a  Republic,  evinced  a  spirit  of  arbitrary  government  and  punished 
crimes  with  an  unsparing  vengeance.  Turn  vero  apud  multos  populo.  et  domi- 
nus  in  servos  et  parentibus  in  liberos  mansit  jus  puncendi  plenum,  etiam  ad 
mor  rra  u»que  sic  Sparta  Ephoris  licuit  civini  occidere  extra  judicium-  Gro. 


6 


the  Roman  Commonwealth,  inflictions  for  offences  indicated 
the  triumpli  of  military  ferocity  and  summary  revenge,  rather 
than  the  adoption  of  mild,  just,  and  rational  laws,  to  restrain 
and  prevent  the  commission  of  offences.  The  conquerors  of 
the  world  were  too  intent  on  the  subjugation  of  mankind,  to 
settle  nice  and  refined  rules  of  human  conduct,  and  to  restraia 
the  evil  propensities  of  a  populous  community,  by  prudent, 
sound,  and  effective  restraints. 

While  the  civil  law  presents  us  with  a  system  of  rules  in  rela- 
tion to  the  rights  of  persons  and  the  rights  of  things,  which 
deserve  admiration ;  while  private  wrongs  and  their  remedies 
are  defined  with  a  subtlety,  and  an  exactness,  that  in  many 
respects,  may  still  challenge  competition  ;  that  porfion  of  it 
which  falls  under  the  head  of  Criminal  Jurisprudence,  presents 
a  dark,  cruel  and  implacable  character.  Punishments  were  dis- 
proportionate to  offences,  as  well  as  relatively  defective  in  their 
graduation;  the  accused  was  not  confronted  with  the  accuser; 
trial  by  jury  was  unknown ;  and  the  means  of  ascertaining  the  per- 
petration of  crimes,  rigorous,  partial  and  unjust.  The  rack,  the 
wheel,  torture,  crucifixion,  and  many  other  barbarous  expe- 
dients, were  common  in  the  treatment  of  culprits,  (c) 

In  looking  into  the  Feudal  laws,  we  look  into  the  operations 
of  a  vast  military  system,  where  the  field,  and  not  the  forum — 
where  the  sword  of  conquest,  and  not  the  scales  of  justice,  is 
most  perceptible.  Single  combat,  the  ordeal  by  fire  and  ivater, 
and  the  extinguishment  of  public  offences  by  pecuniary  com- 
pensation, distinguish  its  history. 

(e)  The  whole  front  of  Roman  Criminal  Law,  presents  nothing  but  odious  tinW 
•f  sanguinary  horrors,  where  every  step  of  the  Legislature  can  be  traced  im 
blood.  The  iron  crown,  the  agonizing  wheel,  the  bed  of  torture,  present  them- 
selves to  the  abhorrent  eye,  on  every  side  ;  their  ultimate  punithments,  savages 
in  their  nature,  and  foreign  to  their  end,  which  is  example,  and  not  the  pain  of 
the  individual.  Delaceration  by  wild  bea^tii,  protrusion  from  the  Tarpeian  Rock, 
immersion,  cruci6xiou  and  scourging  to  death,  are  less  shocking  iii  narration  to 
our  feelings,  than  the  previous  engines  used  to  extort  confession  from  the  prison* 
«r,  and  to  load  with  guilt  the  unfortunate  object  of  imperial  reaoataeat,  Browoe'e 
Civ.  and  Adm.  Law,  p.  it,  V.  j. 


7 


As  we  turn  from  this  offspring  of  fierce  and  barbarous  ages 
to  the  Canon  law,  that  was  principally  composed  from  tl.>e  de- 
crees of  Ecclesiastical  councils,  the  edicts  and  decretals  of  the 
Pope,  and  the  writings  of  the  Papal  Fathers  and  moulded  to 
the  exigencies  of  a  great  spiritual  empire,  by  the  subtlety  and 
adroitness  of  the  ecclesiastics  and  the  commands  of  the  chief 
Pontiff,  we  find  little  worthy  of  commendation  amid  the  excorn- 
raunicatinns,  anathemas,  censures,  degradations,  forfeitures,  and 
other  similar  resorts,  which  formed  the  main  reliance  for  the 
prevention  of  public  offences.  The  overt  sale  of  indulgencies 
to  commit  crimes  of  the  darkest  nature,  not  excepting  robbery, 
arson  and  murder,  throughout  the  papal  dominions,  in  the  16th 
century,  went  far  to  produce  the  overthrow  of  that  power,  which, 
from  the  Vatican,  overawed  the  kings  and  nations  of  the  earth, 
affords  a  striking  comment  on  this  point. 

The  practice  of  expiating  crimes  by  a  specific  recompence, 
seems  to  have  been  a  favorite  remedy  in  many  periods  of  socie- 
ty. Homer  incidentally  mentionsin  his  Illiad,  that  in  ancient 
Troy,  even  murder,  the  blackest  of  offences,  was  punished  by 
fine,  and  this  information  is  again  repeated  in  his  description  of 
the  shield  of  Achilles.  Tacitus  tells  us  that  among  tlie  ancient 
Germans,  injuries  were  atoned  for  by  compensation,  and  homi- 
cide had  its  price,  which,  when  once  paid,  appeased  the  ven- 
geance of  relations  and  friends.  The  Salic  law  settled  various 
prices  for  different  kinds  of  crimes  ;  and,  according  to  Hume, 
among  the  anglo  Saxons,  the  forfeiture  for  killing  a  king,  a 
bishop  and  alderman,  a  thane,  a  sheriff,  a  clergyman  or  a  pea- 
sant, was  settled  by  law,  in  the  coin  of  the  times.  Not  only  was 
the  aggressor  compelled  to  pay,  but  the  relations  and  parties 
injured,  obliged  to  accept,  of  the  penalty  incurred.  Blark?tone 
informs  us,  that  formerly  in  Ireland,  in  case  of  murder,  the  Bre- 
hon  or  Judge  was  authorized  and  accustomed  to  compound 
between  the  murderer  and  the  friends  of  the  deceased,  in  a 
manner  peculiar  to  that  country.  The  lex  talionis  or  the  law  of 
retaliation,  in  case  of  corporeal  injuries,  has  also  been  a  prevailing 
feature  in  the  criminal  systems  of  many  civilized  nations,  and 


8 


one  deformity  6f  person,  when  the  effect  of  violence  has  been 
compensated  by  visiting  the  like  mark  and  suffering  on  the  per- 
son of  another,  the  offender.  Among  the  Jews,  the  Egyptians, 
and  the  Athenians,  this  rule  of  punishment  was  adopted  in  cer- 
tain cases. 

When  the  nations  of  the  European  continent,  emerged  from 
the  barbarism  of  the  dark  ages,  the  civil  law  which  had  slum- 
bered in  obscurity  for  centuries,  awoke  with  the  restoration  of 
the  arts  and  the  sciences.  It  became  the  foundation  of  national 
law  in  Europe,  and  the  municipal  law  of  many  countries,  under 
the  limitation  of  local  customs  and  ordinances.  Its  qualified 
dominion  is  apparent,  as  we  look  into  the  histories  of  Germany, 
Holland,  France,  Italy,  Portugal,  Spain,  and  some  other  states. 
In  criminal  proceedings,  the  process,  as  well  as  the  rules  and  dis- 
criminations of  the  civil  law,  were  in  a  great  degree  followed. 
Inquisition,  denunciation,  accusation,  imprisonment,  the  oath  of 
purgation,  and  the  rack,  were  adopted.  The  writer  before  allu- 
ded to,  ft/j  has  forcibly  remarked  that  there  is  scarcely  an  abuse 
of  the  criminal  law,  which  in  the  last  or  preceding  centuries 
drew  down  on  its  perveters  the  vengeance  of  an  injured  people, 
that  was  not  suggested  by  the  despotic  genius  of  declining  Rome. 
Had  the  Corpus  Juris  Civilis,  while  it  applied  the  principles  of 
jnoral  rectitude  to  the  extended  variety  of  human  concerns,  been 
well  adapted  to  the  prevention  ol  crimes,  and  the  reform  of 
criminals,  far  different  would  have  been  the  science  of  Criminal 
Jurisprudence  among  modern  civilized  nations,  at  the  present 
day. 

For  many  centuries,  after  the  revival  of  letters,  Criminal  Ju- 
risprudence continued  nearly  stationary  on  the  continent  of  Eu- 
rope. The  records  of  her  criminal  courts  were  deformed  by 
cruel,  rigorous,  and  impolitic  sentences,  and  humanity  was 
shocked  and  outraged,  by  awful  and  sanguinary  punishments. 
Dungeons  were  multiplied  and  rendered  the  unmerited  man- 
sions of  ignominy,  sufferings  and  despair  j  torture  and  the  rack 


(<0  Brown's  Civ-  and  Adni-  Law. 


9 


were  applied  with  little  discrimination,  and  no  just  relation  was 
preserved  between  the  offence  and  the  punishment.  Reasons  of 
state  and  religious  bigotry,  added  stimulus  to  the  vindictive 
temper  of  sovereigns,  courts,  and  tribunals.  But  during  the 
18th  century  a  new  and  illustrious  era  broke  upon  the  world. 
A  combination  of  enlightened  philosophers,  united  by  the  ties 
of  genius,  zeal  and  humanity,  lifted  the  curtain  which  had  so 
long  concealed  the  horrors  and  abuses  of  different  existing  crimi- 
nal codes,  and  opened  the  eyes  of  nations  to  the  deep  rooted  and 
flagrant  errors  of  the  systems,  which  they  sustained.  Their  ap- 
peals to  public  conviction,  were  effectual  to  no  inconsidera- 
ble extent,  and  the  moderation  of  some  punishments  and  the 
abolition  of  others,  succeeded.  Torture  was  banished  from 
Germany,  Sweden,  Saxony,  Poland.  Denmark,  and  Russia. 
France  (e)  enlightened  and  polished  France,  with  a  character 
illustrious  for  valor,  for  learning,  and  the  arts,  was  among  the 
last  to  follow  this  mild  and  praise-worthy  example,  if  we  except 
Spain  and  Portugal,  whose  annals  are  stained  with  blood,  and 
whose  moral  condition  requires  deep  and  radical  changes  to  re- 
form the  abuses  of  laws  and  customs,  (f)  The  attempts  made 
in  Russia  and  in  one  of  the  Italian  states  to  effect  the  permanent 
abrogation  of  all  capital  punishments,  proceeded  from  this  be- 
nevolent spirit  for  reformation. 

(e)  The  laws  given  to  France  by  Napoleon  reflect  more  credit  on  liis  public 
career  than  all  his  conquests-  From  the  time  his  criminal  code  was  adopted, 
crimes  rapidly  diminished-  The  following  facts  are  taken  from  the  report  of  the 
Minister -of  the  Interior  in  1813.  In  1801  the  population  of  France  was  34-  mil- 
lions :  that  year  produced  8500  criminal  cases  in  which  there  were  implicated 
J2,400  persons.  In  1811a  population  of  42  millions  offered  but  6000  criminal 
cases  in  which  were  implicated  8600  persons.  In  1801,  8000  were  sentenced ;  in 
1811,  5,500;  in  1801  there  were  88  sentences  to  death,  in  1811  only  392  Louis 
18th  has  had  the  good  sense  to  adopt  the  code  of  Napoleon,  with  a  few  altera- 
tions. 

(/)  The  last  question  concerning  torture  was  brought  up  in  England  in  the  reign 
of  Charles  the  first  by  the  Bishop  of  London  in  the  case  of  Felton,  for  the  murder 
of  the  Duke  of  Buckingham.  It  was  introduced  in  the  time  of  Henry  the  sixth. 
In  the  case  here  mentioned,  the  12  Judges  unanimously  decided  that  it  was  con- 
trary to  the  laws  of  England.    Fos.  C.  Lew.  244. 

2 


10 


It  is  with  regret  that  we  are  here  compelled  to  advert  to  Eng- 
land, with  the  deepest  sentiments  of  reprthension.  While  she  just- 
ly boasts  of  a  system  of  jurisprudence  in  civil  transactions,  that 
applies  to  all  the  exigencies  of  civilized  society,  that  guards  and 
secures  all  the  rights,  incident  to  a  state  of  public  and  private 
security,  and  one  that  is  founded  on  the  broad  basis  of  utility, 
her  criminal  code  presents  us  with  a  melancholy  spectacle  of 
cruelty,  error,  and  neglect.  Not  only  is  it  inadequate  to  the 
ends  which  it  has  been  designed  to  accomplish ;  but  it  is  pro- 
ductive of  the  very  evils  which  it  would  remedy.  The  land  of 
Coke,  of  Hale,  of  Foster  and  Mansfield,  whose  powerful  and 
comprehensive  minds  extended  the  boundaries  of  legal  science, 
and  enriched  and  adorned  it  with  truths  and  principles  that  were 
drawn  from  the  depths  of  human  reason,  at  this  late  day  retains 
a  system  of  laws  that  awards  death  for  about  twoliundred  offen- 
ces, and  that  draws  no  distinction  between  the  most  atrocious 
murders  and  the  stealing  of  a  guinea,  or  the  cutting  down  a  for- 
est tree. 

We  cannot  conclude  these  remarks  on  the  subject  under  con- 
sideration, with  more  propriety  than  by  adopting  the  judicious 
observations  of  the  learned  and  elegant  Commentator  on  the 
laws  of  England.  "  In  proportion  to  the  importance  of  criminal 
law,  ought  also  to  be  the  care  and  attention  of  the  Legislature 
in  properly  forming  and  enforcing  it.  It  should  be  founded  up- 
on principles  that  are  permanent,  uniform,  and  universal  ;  and 
always  conformable  to  the  dictates  of  truth  and  justice,  the  feel- 
ings of  humanity,  and  the  indelible  rights  of  mankind,  though  it 
sometimes  (provided  there  be  no  transgression  of  these  external 
boundaries)  may  be  modified,  narrowed  or  enlarged,  according 
to  the  local  or  occasional  necessities  of  the  state  which  it  is 
meant  to  govern.  And  yet  either  from  a  want  of  attention  to 
these  principles,  in  the  first  concoction  of  the  laws,  and  adopting 
in  their  stead  the  impetuous  dictates  of  avarice,  ambition  and 
revenge,  from  retaining  the  discordant  political  regulations, 
which  successive  conquerors  or  factions  have  established,  in  the 
rarious  revolutions  of  government ;  from  giving  a  lasting  effica- 


11 


cy  to  sanctions  that  were  intended  to  be  temporary,  and  made 
(as  Lord  Bacon  expresses  itj  merely  upon  the  spur  of  the  occa- 
sion ;  or  from,  lastly,  too  hastily  employing  such  means  as  are 
greatly  disproportionate  to  their  end,  in  order  to  check  the  pro- 
gress of  some  very  prevalent  offence  ;  from  some,  or  from  all  of 
these  causes,  it  hath  happened  that  the  Criminal  Law  is  in  eve- 
ry country  of  Europe,  more  rude  and  imperfect  than  the  civil. 
I  shall  not  here  enter  into  any  minute  inquiries  concerning  the 
local  constitutions  of  other  nations  :  the  inhumanity  and  mista- 
ken policy  of  which  have  been  sufficiently  pointed  out  by  inge- 
nious writers  of  their  own.  But  even  with  us,  in  England  where 
our  crown  law  is  with  justice  supposed  to  be  more  nearly  advan- 
ced to  perfection  ;  where  crimes  are  more  accurately  defined, 
and  penalties  less  uncertain  and  arbitrary  ;  where  all  our  accu- 
sations are  public,  and  our  trials  in  the  face  of  the  world  ;  where 
torture  is  unknown,  and  every  delinquent  is  tried  by  such  of  his 
equals,  against  whom  he  can  form  no  exception  nor  even  a 
personal  dislike  :  even  here  we  shall  occasionally  find  room  to 
remark  some  particulars  that  seem  to  want  revision  and  amend- 
ment." (h) 

From  this  partial  sketch  concerning  the  Criminal  Jurispru- 
dence of  other  countries,  we  turn  to  the  United  States.  We  turn 
to  our  country  too,  with  those  grateful  emotions  that  are  inspired 
by  just  causes  of  self-gratulation.  No  country  on  the  face  of 
the  globe,  of  the  extent  and  population  of  the  American  nation, 
presents  a  criminal  system  so  mild,  so  rational,  and  so  well  pro- 
portioned to  its  ends  as  ours.  It  attracts  admiration  among  the 
most  polished  states  of  the  world,  receives  the  eulogiums  of 
philosophers,  and  philanthropists,  and  with  our  free  and  popu- 
lar institutions,  and  with  the  sedulous  attention  of  wise  legisla- 
tors, may,  ere  long,  command  the  imitation  of  older  and  more 
powerful  empires.  Strong  moral  causes  have  contributed  to  the 
contrast  which  we  display  between  ourselves  and  other  nations, 
in  this  respect.    Many  of  the  first  settlers  of  this  country  were 


{h)  Black.  Com.  Vol.  4,  p.  3. 

2* 


12 


men  of  enlarged  views  and  vigorous  minds ;  many  had  left  the, 
shores  of  the  other  continent  with  a  spirit  of  free  enquiry  and 
with  a  repugnance  to  irrational  and  sanguinary  laws  of  every 
description.  They  came  to  a  land,  where  the  theatre  of  experi- 
ment was  boundless.  The  relations  of  civil  society  were  few 
and  simple,  and  the  complex  abuses  of  long  existing  systems, 
in  social  order,  were  unknown.  Some  bold  advances  towards 
the  adoption  ol  a  mild  and  temperate  Criminal  Code,  were 
made  before  the  Revolution  ;  but  it  was  that  great  and  momen- 
tous event  which  divested  the  monuments  of  European  polity 
and  jurisprudence  of  a  false  venerati  n,  that  expanded  the  pub- 
lic mind  to  a  more  acute,  comprehensive  and  enlightened  view 
of  public  rights  and  their  security.  In  the  Constitution  of  the 
United  States,  as  well  as  in  the  se\  e.-al  Slate  Constitutions,  con- 
stant regard  is  paid  to  the  preservation  of  life  and  the  security  of 
fundamental  principles,  (g)  The  statutes  of  our  different  Le- 
gislatures, which  followed  the  establishment  of  the  national  go- 
vernment, breathed  a  spirit  of  mildness  and  humanity,  unknown 
to  the  nations  of  Europe.  Public  investigation  was  unshackled, 
and  the  public  mind  susceptible  of  new  and  deep  convictions, 
upon  subjects  connected  with  the  general  interest,  and  the  moral 
condition  of  the  community.  The  writings  of  eminent  advocates 
on  the  other  side  of  the  Atlantic  for  mild  punishments,  met  with 
an  ardent  admiration.  Many  able  and  luminous  disquisitions 
were  written  in  this  country,  to  advance  the  triumph  of  humane 
laws,  and  in  some  places  associations  of  distinguished  men  were 
formed  for  the  same  purpose. 

From  these,  and  other  kindred  cause!;,  arose  the  PENITEN- 
TIARY SYSTEM  in  the  United  Slates.  It  was  the  offspring 
of  this  country,  and  established  on  the  broad  principles  of  hu- 
manity. It  was  believed  by  its  founders,  that  sanguinary  pun- 
ishments were  not  the  most  subservient  to  the  ends  of  criminal 
justice,  and  that  a  system  of  laws  that  would  tend  to  give  a  mo- 


(g)  See  Appendix  ( \)  where  those  parts  of  the  atatc  Constitutions,  relating  to 
♦his  subject,  are  given  in  one  riew. 


18 


ral  dominion  over  the  mind  and  bring  It  to  a  sense  of  its  erroi'a 
and  turpitude,  would  prove  more  efficacious  in  preventing  offen- 
ces, than  severe  corporeal  inflictions :  that  a  system  of  laws 
which  should  prescribe  confinement,  hard  labour,  and  moral 
discipline  and  instruction,  would  accomplish  this  purpose,  and 
send  forth  convicts  at  the  termination  of  their  confinement,  as 
useful  members  of  society. 

Before  the  Committee  proceed  to  give  (heir  views  of  the 
tendency,  defects  and  reform  of  the  Penitentiary  System  in 
this  country,  a  brief  sketch  of  its  rise  and  progress  may  not  be 
unproductive  of  benefit. 

To  William  Penn,  a  name  venerable  and  distinguished  in  the 
history  of  the  new  World,  and  one  which  will  ever  be  associa- 
ted with  the  recollection  of  ardent  and  successful  effurts  to  im- 
prove the  condition  of  mankind,  may  be  traced  the  first  steps 
towards  that  reformation  in  Penal  jurisprudence  to  which  we 
have  alluded.    The  British  government  appears  to  have  been 
anxious  to  extend  her  Penal  laws,  or  at  least  the  spirit  of  them, 
to  her  North-American  Colonies.  In  the  Royal  Charter,  grant- 
ed to  the  founder  of  Pennsylvania,  by  Charles  II.  it  is  directed 
that  the  laws  of  the  coloqy,  in  relation  to  felonies,  should  bear 
a  similitude  to  those  of  the  mother  country  ;  and  even  the  fu- 
ture Provincial  Legislatures  were  constrained  to  conform  to  the 
British  system  in  their  future  enactments.    But  William  Penn 
was  a  man  of  firm  purpose,  of  strong  mental  powers,  and  of  an 
original  cast  of  mind.    He  thought  with  freedom  on  every  sub- 
ject, and  his  acts  comported  with  his  conclusions.    He  set  at 
defiance  the  arbitrary  injunctions  in  the  Royal  Charter  relating 
to  the  punishment  of  crimes.    First  he  abolished  forfeitures  in 
cases  of  suicide,  and  the  deodands  which  followed  the  perpetra- 
tion of  murder.  He  then  formed  an  independent  Criminal  Code, 
in  which  capital  punishment  for  robbery,  burglary,  arson,  rape, 
forgery,  and  levying  war  against  the  governor,  was  abolished, 
and  alone  retained  in  cases  of  homicide.    Imprisonment,  with 
hard  labour,  and  in  some  Instances  the  infliction  of  corporeal 
punbhrnent  were  cubstituted.    In  trials  for  murder,  where  the 


14 


jury  retnmed  a  verdict  of  guilty,  the  record  of  conviction  was 
sent  up  to  the  Executive  for  supervision.  This  Code,  wor- 
thy of  one  of  the  greatest  legislators  of  the  new  world  or  the 
old,  was  transmitted  to  England  and  rejected  by  Queen  Ann 
and  her  council.  But  the  Colonial  government  conducted 
with  a  noble  resolution,  and  still  retained  it  in  defiance  of  royal 
displeasure,  until  1718,  with  the  most  salutary  effects.  Under 
the  reign  of  George  I.  after  much  trouble  and  confusion  in  the 
Colony,  the  mild  system  of  William  Penn  was  surrendered  un- 
der many  aggravating  circumstances,  in  which  the  hand  of  op- 
pression is  too  visibly  seen.  A  new  Criminal  Code  was  given 
to  Pennsylvania,  which,  with  subsequent  additions,  rendered  six- 
teen species  of  crime  punishable  with  death  ;  also  extending  ca- 
pital punishment  to  all  cases  of  felony  on  second  conviction, 
excepting  larceny.  No  further  change  ensued,  until  the  Revo- 
lution. That  august  event  burst  the  fetters  of  colonial  law.  In 
the  Constitution  of  Pennsylvania,  framed  in  1776,  the  Legisla- 
ture is  ordered  "  to  reform  the  Penal  laws — to  make  punish- 
ments less  sanguinary,  and,  in  some  cases,  more  proportionate 
to  the  offence."  In  1786,  a  new  Criminal  Code  was  created,  and 
capital  punishment  was  retained  in  four  of  the  highest  felonies — 
treason,  murder,  rape,  and  arson.  But  what  derogated  altoge- 
ther from  its  merits,  was  the  infliction  of  severe  corporeal  punish- 
ment, by  whipping  in  public,  and  by  compulsion  to  hard  labour 
with  the  head  shaved,  and  with  other  external  indignities.  The 
tendency  of  this  system  was  obvious.  It  roused  the  strongest 
feeling  of  public  aversion,  and  elicited  the  censures  of  such  men 
as  Benjamin  Franklin,  Benjamin  Rush,  and  William  Bradford. 
—These  personages  will  be  ranked,  to  the  close  of  time,  among 
the  ornaments  of  our  species,  and  among  the  benefactors  of  our 
race.  Caleb  Lowndes  of  the  society  of  Friends,  whose  biogra- 
phy is  the  history  of  benevolence,  displayed  in  its  most  simple 
and  effective  character,  aided  with  unreserved  ardour  in  the  at- 
tempts at  reformation.  In  1790,  a  change  took  place  in  the 
Penal  laws  of  that  state.  The  State  Prison  at  Philadelphia  was 
erected.  Here  commenced  the  Penitentiary  System  in  the  Uni- 


15 


ted  States,  wbicb  has  now  been  in  existence  about  tbirty  years. 
As  we  shall  mention,  tbe  peculiar  construction  of  the  Penitentia- 
ries in  this  country,  in  their  proper  order  and  in  a  succinct  man- 
ner, nothing  need  be  said  here  in  relation  to  the  internal  ar- 
rangement and  police  of  the  one  now  mentioned.  We  are  now 
showing  the  rise,  and  not  the  defects  of  tbe  system. 

In  1794,  tbe  example  of  Philadelphia,  awakened  tbe  philan- 
thropy of  sereral  citizens  of  the  city  and  state  of  New- York. 
Previous  to  this  period,  no  views  on  the  subject  of  the  Peniten- 
tiary System  were  entertained  in  this  section  of  the  union.  Du- 
ring tbe  year  here  mentioned.  General  Schuyler  and  Thomas 
Eddy,  without  any  other  business,  visited  tbe  Philadelphia  pri- 
son, for  the  purpose  of  forming  a  more  accurate  knowledge  of  its 
tendency,  its  structure,  and  its  internal  arrangements.  The  view 
made  a  favourable  impression  on  their  minds,  and  on  their  re- 
turn to  New- York,  General  Schuyler,  who  was  one  of  tbe  most 
liberal  minded,  enterprising,  and  illustrious  founders  of  this 
Commonwealth,  and  who  was  then  in  tbe  senate  of  this  state, 
immediately  drafted  a  law  for  tbe  erection  of  a  Penitentiary  in 
the  city  of  New-York.  This  bill  "  for  making  alterations  in  tbe 
criminal  law  of  this  state,  and  tbe  erecting  of  State  Prisons," 
was  brought  forward,  and  ably  and  successfully  sustained  by 
Ambrose  Spencer,  the  present  Chief  Justice  of  tbe  state  of  New- 
York,  and  finally  became  a  law  on  tbe  26tb  of  ]VIarcb,  1796.  (j) 
By  this  law,  two  State  Prisons  were  directed  to  be  established — 
one  at  New- York,  and  one  at  Albany.  The  idea  of  a  Peniten- 
tiary at  Albany,  was  afterwards  abandoned,  and  the  whole  ap- 
propriation expended  in  New-York,  under  a  commission,  con- 
sisting of  Matthew  Clarkson,  John  Murray,  jun.  John  Watts, 
Thomas  Eddy,  and  Isaac  Stoutenburgb.  With  the  passage  of 
tbe  law  here  alluded  to,  an  important  amelioration  took  place  in 
our  criminal  code.  Previous  to  tbe  year  1796,  there  were  no 
less  than  sixteen  species  of  crime,  punishable  with  death,  in  this 


(J)  Vide  Journals  Sen.  and  account  of  the  Penitentiary  House  in  the  City  of 
New-York. 


16 


state.  Corporeal  punishment  was  resorted  to,  and  in  many  cases, 
where  felonies  were  not  capital,  they  became  so,  on  their  second 
commission.  By  the  law  1796,  providing  for  the  erection  of 
the  New-York  Penitentiary,  capital  punishments  were  abolished 
in  fourteen  cases,  for  imprisonment  during  life,  or  for  a  shorter 
period,  and  only  retained  for  treason  and  homicide.  This  re- 
form has  since  been  advanced  still  further ;  but  some  laudable 
attempts  have  failed  of  success.  In  1804,  eight  years  after  the 
erection  of  the  New- York  Penitentiary,  Thomas  Eddy  framed 
a  law  "  for  erecting  a  Prison  for  solitary  confinement  in  the  city 
of  New- York.."  This  was  to  contain  sixty  cells  of  the  dimen- 
sions of  7  feet  by  8,  where  all  convicts  for  petit  lauceny,  and 
other  minor  offences,  were  to  be  confined  for  a  short  period  in 
solitude,  without  labour,  and  on  a  low  diet.  Had  this  plan  suc- 
ceeded, it  was  contemplated  to  divide  the  state  into  districts, 
and  to  erect  a  similar  prison  in  each  section.  By  an  alteration 
in  the  above  bill,  the  erection  of  the  Prison  was  left  to  the  dis- 
cretion of  the  Corporation  of  the  City  of  New-York,  who  ap- 
proved of  the  system,  but  never  executed  the  law.  Good  effects 
were  however  produced  by  its  passage.  A  copy  of  it  was  trans- 
mitted to  Mr.  Colquhoun,  the  author  of  the  Police  of  London, 
the  Police  of  the  River  Thames,  and  other  celebrated  works,  ac- 
companied by  a  letter  to  the  same  distinguished  person,  from 
Thomas  Eddy.  These  were  banded  to  Lord  Sidraouth,  then 
Secretary  of  the  Home  Department,  who  decidedly  approved  of 
the  principles  which  it  adopted  ;  and  in  a  few  years  afterwards, 
prisons  were  constructed  in  England  upon  the  plan  which  it 
embraced.  On  this  subject  more  will  be  said  in  the  se- 
quel. 

The  State  Prison  in  Richmond  in  the  Commonwealth  of  Vir- 
ginia, was  erected  in  the  year  1800.  Convicts  for  homicide  in 
the  second  degree,  manslaughter,  rape,  grand  and  petit  larceny, 
burglary,  robbery,  forgery,  and  other  inferior  crimes,  are  doom- 
ed to  this  Penitentiary.  The  State  Prison  in  Charlestown,  in 
the  Commonwealth  of  Massachusetts,  was  erected  in  1804  with 
a  correspondent  change  in  the  penal  code  of  the  state.  The 


IT 


State  Prison  at  Baltimore,  in  the  State  of  Maryland,  was  erec- 
ted in  1811.  The  State  Prison  at  Windsor  in  the  State  of  Ver- 
mont, was  erected  in  the  year  1603.  The  State  Prison  at  Con- 
cord, in  the  State  of  New-Hampshire,  was  finished  about  1812, 
and  the  one  at  Cincinnati,  in  the  State  of  Ohio,  was  established 
in  1616.  There  are  also,  Penitentiaries  in  New-Jersey,  Ten- 
nessee, and  Kentucky.  The  Penitentiary  in  the  State  of  Con- 
necticut, differs  from  all  others  in  the  United  States,  and  was 
not  entirely  the  effect  of  the  system  cemmenced  in  Pennsylva- 
nia. We  have  not,  therefore,  regarded  its  priority  in  point  of 
age.  About  a  century  ago  a  company  of  German  miners,  open, 
ed  what  was  called  the  Copper,  or  Simsbury  mines.  The  ex- 
cavation created  by  procuring  the  ore  is  about  70  feet  in  its 
greatest  depth,  and  about  one  hundred  feet  in  length,  varying 
from  ten  to  fifty  feet  in  width,  and  from  five  to  fourteen  feet  in 
length.  About  the  year  1778,  the  state  made  use  of  this  cavern 
as  a  prison  for  felons.  In  1790,  it  was  rendered  a  State  Prison 
for  convicts,  by  the  Legislature  The  necessary  walls,  buildings 
and  workshops,  were  erected,  during  the  same  year.  No  fe- 
male prisoners  are  ever  sent  here,  and  a  female  convict  is  indeed 
a  rare  spectacle  in  this  state  ;  they  are  sent  to  the  country  work 
house,  if  ever  arraigned  and  convicted.  Burglary,  arson,  horse- 
stealing, rape  and  forgery,  are  the  crimes  punished  by  sentence 
to  this  place.  Previous  to  the  period  when  this  prison  was  pre- 
pared, these  offences  were  punished  by  death,  cropping  the  ears, 
branding  on  the  forehead,  whipping  in  public,  or  the  pillory.  It 
may  therefore  be  said  to  have  produced  a  change  in  the  crimi- 
nal code  of  Connecticut,  which  has  received  the  long  and  con- 
stant sanction  of  public  approbation  up  to  this  day.  (k) 

The'^e  we  believe  include  all  the  Penitentiaries  that  have  been 
erected  in  the  United  States,  with  the  exception  of  one  at  Pitts- 
burgh in  the  State  of  Pennsylinvania,  and  one  at  Auburn  in  the 
State  of  New-York,  which  we  shall  notice  in  the  sequel. 

We  have  now  given  a  sketch  of 'the  rise  and  progress  of  the 


(t)  Vide  Mr.  Shelden's  letter  to  Gov.  Woolcol  in  the  appendix  and  Gov.  W's. 
>etter  also. 

3 


18 


Penitentiary  System  of  the  United  States.  It  was  first  introdu- 
ced, and  has  since  been  cherished,  for  the  important  purpose  of 
preventing  crimes  and  offences,  and  for  reforming  convicts.  The 
grand  question  which  now  arises,  is,  has  the  system  answered 
the  expectations  of  its  founders  and  advocates  ?  To  this  inqui- 
ry but  one  answer  can  be  given. — It  has  not.  Two  other  inqui- 
ries, then,  naturally  arise  :  First,  Why  has  the  Penitentiary  Sys- 
tem failed  of  producing  its  expected  ends  .''  Secondly,  Can  it  be 
so  modified  and  improved,  as  to  produce  the  results  expected  by 
its  founders  ? 

We  shall  contend  that  the  Penitentiary  System  is  a  practical 
System,  and  that  its  present  defects  are  separable  from  it  and 
can  be  eradicated.  We  must  still  cherish  the  firm  and  unsha- 
ken conviction,  that  it  is  not  beyond  the  bounds  of  human  effort 
to  devise  a  system  of  punishment,  that  will  combine  in  its  ten- 
dency, the  prevention  of  crimes,  and  the  reform  of  convicts. 
We  do  not  believe  that  civilization  has  yet  effected  all  the  moral 
changes  and  improvements,  that  can  be  wrought  in  the  consti- 
tution of  human  society,  or  that  laws  and  government  have 
been  carried  to  the  utmost  limits  of  perfection.  Nor  do  we 
admit,  that  even  in  the  Penitentiary  System,  there  has  been 
that  total  failure  which  some  have  been  pleased  to  assign,  al- 
though from  the  perversion  of  its  principles,  it  has  disappointed 
the  hopes  of  its  early  friends. 

The  divisions  of  this  Keport  will  naturally  fall  under  the  fol- 
lowing heads : 

I.  What  are  the  defects  of  the  Penitentiary  System  of  the 
United  States,  and  why  has  it  failed  to  answer  the  objects  of 
its  establishment  i* 

II.  In  what  manner  can  the  defects  be  remedied,  and  how  can 
the  System  be  rendered  effectual  .<* 

III.  If  the  Penitentiary  System  is  to  be  abandoned  in  the  Uni- 
ted States,  to  what  substitute  shall  we  resort 

The  Committee  confidently  hope  that  the  investigation  of 
these  problems  will  result  in  a  firm  conviction  that  it  is  our  duty 
to  adhere  to  the  Penitent  &ry  System  in  the  United  States,  and 


19 


to  look  to  it,  under  new  improvements,  as  a  national  blessing, 
when  compared  witli  any  other  system  of  criminal  law  that  can 
succeed  it 

I.  The  present  defects  of  the  Penitentiary  System  may  he 
included  in  this  enumeration  : 

1.  Frrors  in  the  construction  of  our  prisons. 

2.  Want  of  classification  among  the  convicts. 

3.  Want  of  room. 

4.  The  too  frequent  intervention  of  pardons. 

5  Want  of  a  school  for  Juvenile  offenders,  and  of  a  system  of 
^loral  and  religiou;  instruction. 

6.  The  too  frequent  change  of  Superintendants  and  Governors- 

7.  Want  of  proper  diet. 

8.  Too  much  rpgard  to  revenue. 

1.  The  errors  in  the  construction  of  our  State  Prisons,  have 
more  than  once  been  perceived  and  pointed  out,  by  those  who 
have  cherished  a  deep  interest  in  the  improvement  and  perfec- 
ticn  of  the  Penal  Codes  of  this  country.  The  place  of  confine- 
ment of  the  Philadelphia  Prison  occupies  a  lot  of  400  feet  by 
200  feet,  on  which  is  erected  a  large  stone  building,  184  feet 
long  on  the  north  side,  two  stories  high,  divided  into  rooms  of 
equal  dimensions  of  20  by  18  feet.  The  New- York  Prison  is 
204  feet  long,  a  wing  projecting  from  each  end,  and  from  these 
wings  two  other  smaller  wings.  The  whole  fabrick  is  of  the 
Doric  order,  and  contains  54  rooms,  12  feet  by  18,  for  prisoners, 
sufficient  for  the  accommodation  of  8  persons  each.  The 
Massachusetts  Penitentiary  consists  of  a  principal  building,  66 
feet  long  and  28  feet  wide,  containing  five  stories  and  two  wings, 
each  67  feet  long  and  44  wide,  making  in  the  whole  a  building 
of  200  feet.  The  rooms  of  the  two  upper  stories  are  17  feet 
by  11,  and  the  cells  of  the  two  lower  stories  are  11  feet  by  8. 

The  cells  in  the  ground  story  are  assigned  to  convicts  for  soli- 
tary confinement,  and  for  violating  the  internal  police  of  the 
prison.  It  is  unnecessary  to  describe  the  internal  and  external 
structure  of  all  the  Penitentiaries  in  the  United  States.  The 
description  of  the  oldest  already  mentioned  may  be  taken  as  a 


20 


data.  The  Virginia.  Maryland,  New-Hampshire,  Vermont  and 
Ohio  Prisons,  do  not  so  deviate  from  them  in  any  particular,  as 
to  redeem  the  System  from  the  errors  which  have  been  enu- 
merated, and  which  we  shall  illustrate.  The  rooms  are  all  too 
large,  and  none  of  the  prisons  constructed  on  a  plan  to  prevent 
the  constant  intercourse  of  criro*nals  er  to  divide  and  keep  then 
in  distinct  and  proper  classes. 

Here  is  one  of  the  fundamental  errors,  that  has  defeated  the 
grand  object  of  the  Penitentiary  System  in  the  United  Slates. 
This  is  the  greatest  of  all  the  defects  that  time  and  experience 
have  revealed,  in  the  lapse  of  thirty  years.  It  accommodates  u.» 
internal  police  of  our  prisons,  to  the  ruling  propensities  of  huo.an 
nature  and  gives  indulgence  to  the  leading  passions  and  mch- 
nations  of  man.    It  baffles  the  adoption  of  aH.Pt''er  rules  and^ 
principles  of  discipline  and  organization,  and  we  might  as  well 
attempt  to  raise  a  superstructure  without  a  fpundationj  as  . 
make  efforts  for  the  perfection  of  a  Criminal  Code,  while  it»  first;, 
requisite  is  wholly  wanting.  Wi  to 

The  erroneous  construction  of  our  Penitentiaries,  bas 
until  recently,  attracted  that  deep  attention  throughout  the 
country,  which  it  deserves.    For  several  years,  every  thing  re- 
lating to  the  System,  was  viewed  as  a  matter  of  experiment, 
and  so  far  as  it  was  adopted,  it  proved  so  much  superior  io  its 
moral  consequences,  to  the  old  sanguinary  codes  of  the  colonies, 
that  the  gain  was  deemed  matter  of  congratulation,  although  the 
grand  end  was  not  attained.    Besides,  the  number  of  convicts 
was  much  smaller  than  it  is  at  present,  the  superintendants  were 
frequently  changed,  the  chain  of  observation  was  broken,  and 
if  the  sagacity  of  observation  detected  defects,  they  were  not 
so  presented  to  the  Legislatures  of  the  different  sections  of  the 
Union,  as  to  awaken  their  apprehensions.    Hence  one  state 
after  another,  each  having  disUnct  municipal  laws,  and  distinct 
constitutions  of  government,  went  on,  imitating  Pennsylvania 
and  New- York,  in  the  erection  of  prisons,  and  adapted  the  errors 
and  vices  of  the  System,  without  an  anticipation  of  disastrous 
consequences.   The  last  prison  on  the  old  plan  was  erect«d  at 
Cincinnati,  in  the  state  of  Ohio,  in  1816. 


21 


God  has  planted  in  the  bosom  of  man  those  passions  and  emo- 
tions that  constrain  him  to  assimilate  his  condition  to  that  of  his 
species,  and  to  cultivate  those  relations,  that  produce  reciprocity 
of  feeling.  (I)  Abstractedly  speaking,  his  nature  is  social ;  but 
when  bom  and  cherished  in  the  bosom  of  civilization,  and  when 
his  faculties  are  called  forth,  and  his  leading  propensities  grati- 
fied, by  constant  intercourse,  and  where  the  pleasures  of  socie- 
ty become  essential  to  his  comfort  and  his  happiness,  the  heavi- 
est curse  that  can  fall  upon  him,  is,  complete  and  unceasing  soli- 
tude. His  fortitude  may  endure  and  triumph  over  the  infliction 
of  corpjral  sufferings ;  his  want  of  shame  may  set  at  defiance 
the  soJrn  of  the  world,  as  he  undergoes  the  ignominy  of  public 
disgiace  ;  his  desperation  may  enable  him  to  look  coldly  and 
fearlessly  on  capital  punishment ;  but  that  condition  that 
cuts  him  off  from  the  world  and  all  its  endearments  and  attrac- 
tions: *fcat  judgment  of  law  that  proves  the  grave  of  every 
social  blessing  and  allurement,  and  leaves  the  mind  to  prey  upon 
itself,  and  mixes  bitterness  and  reproach  with  every  remem- 
brance;  that  doom  which  places  before  the  eye,  one  long,  dark 
and  unchanging  scene  of  seclusion  that  can  never  be  broken  by 
:he  human  voice,  lighted  up  by  a  smile  of  joy,  nor  meliorated 
by  a  tear  of  sympathy,  is  more  appalling,  in  the  train  of  reflec- 
tion, than  all  the  terrors  of  dissolution.  If  exile  from  our  native 
country,  although  it  may  place  us  in  the  midst  of  the  most  re- 
fined and  polished  society  in  foreign  countries,  and  carry  with  it, 
as  it  frequently  does,  the  consolation  derived  from  noble  strug- 
gles and  elevated  devotions  to  a  pure  cause,  frequently  breaks 
the  proudest  spirit  and  shakes  the  firmest  resolution,  and  is  view- 

(I)  Two  thousand  years  have  not  weakened  t)ie  force  of  the  beaufifuUdea  ex- 
pressed by  Aristotle,  when  he  said,  that  from  the  circumstance  of  man's  being 
endowed  with  the  powers  of  speech,  he  could  pro^e  his  ruling  propensity  for 
social  existence.  Grotius  has  repeated  it  in  the  following  remarks  :  hominivero 
perfects  setatis,  cam  circa  similia  similiter  agere  norit  cum  societatis  appetita 
•xcellente.  cujtis  pecutiare  solus  inter  anioiantes  instrumentum  babet  sermonem, 
inesse  etiam facultatem  sciendi  agcndique.  secundum  generalia  praecepta,  par  es^ 
iDtelligi.  cui  quae  conveniunt  ea  jam  sunt  noD  omnium  quidera  animantium  sed 
homans  naturs  congruentia. 


22 


ed  as  an  act  of  outlawry  from  the  enjoyments  of  our  existence ; 
what  must  be  that  exile  from  all  human  kind  that  is  the  result  of 
vice,  profligacy  and  crimes ;  that  carries  with  it  the  torture  of 
self-condemnation  and  the  reprehension  of  the  world;  thatcan- 
not  be  soothed  by  the  enthusiasm  ol  principle,  nor  mitigated  by 
the  distant  applause  of  posterity  ?  The  evening  sun  sets  but  to 
rise  on  the  same  dark  scene  of  mental  suffering :  the  mind  is 
driven  to  rely  upon  its  own  resources :  the  pleasures  of  inventive 
genius  are  withdrawn,  and  the  poignancy  of  deep  and  settled 
repentance  is  uninterrupted.  This  is  not  theory,  that  no  prac- 
tice has  sanctioned.  It  is  founded  on  the  deepest  priry^iples  of 
our  nature,  all  round  the  globe,  where  civilization  has  tast  the 
lines  and  boundaries  of  her  empire. 

And  indeed  it  may  perhaps  be  said  with  truth,  that  the  social 
attractions  act  stronger  on  depraved  and  desperate  persons,  lhan 
on  tliose  of  a  correct  and  virtuous  character.  What  pleasures 
can  pertain  to  persons  destitute  of  all  moral  obligations  but  ihe 
indulgence  of  those  passions  that  can  alone  be  gratified  by  a 
communion  with  others.''  Who  plunders  the  property  of  ano- 
ther, who  seeks  gain  by  violating  the  Penal  laws,  to  enjoy  the 
fruits  of  aggression  in  solitude  .''  Mark  the  murderer,  the  pirate, 
the  burglar,  the  thief,  and  the  swindler — v/hither  do  they  repai 
with  the  acquisition  of  their  crimes.''  They  go  to  the  bosom  o' 
that  abandoned  circle,  which  is  composed  of  wretches  lik< 
themselves.  They  derive  a  countenance  and  support  froa 
those,  who,  like  themselves,  have  ceased  to  regard  moral  ties, 
and  who  adhere  to  no  common  bond  but  that  which  holds  to- 
gether a  combination,  erected  against  the  peace,  the  rights  and 
the  security  of  the  community.  It  is  in  the  refuge  afforded  by 
such  associations,  that  reflection  is  precluded,  and  conscience 
vanquished.  It  is  in  such  asylums  of  infamy,  that  the  most 
depraved  can  find  vindicators.  In  the  ebulitions  of  a  convulsive 
joy  at  the  success  and  triumphs  of  guilt,  or  in  the  cool  and  de- 
liberate councils  for  the  prosecution  of  fresh  depredations,  we 
may  expect  the  annihilation  of  every  wholesome  and  honora- 
ble restraint,  and  the  banishment  of  contrition  and  remorse. 


23 


Let  us,  for  instance,  take  ten  or  twenty  abandoned  fHons,  and 
give  them  their  choice  either  to  go  into  complete  solitude,  and 
be  comfortably  cloathed  and  fed,  and  live  in  total  idleness,  or  to 
be  placed  in  the  society  of  one  hundred  honest  mechanics  with 
whom  they  should  live  and  labour  and  be  comfortable,  or  be 
placed  in  the  society  of  two  or  three  hundred  criminals,  like 
themselves,  destitute  of  honesty,  and  destitute  of  shame  :  can 
any  rational  person  doubt  the  alternative  which  would  be  em- 
braced ?  Solitude  would  present  nothing  but  horror ;  the  com- 
pany of  industrious  and  upright  men,  would  be  disgusting;  but 
the  association  with  knaves  and  villains,  would  be  a  place  hold- 
ing out  the  most  pleasing  anticipations. 

With  these  prefatory  remarks,  and  with  the  principles  of  con- 
duct, and  thinking  which  we  have  pointed  out,  fully  in  mind, 
let  us  take  a  view  of  the  internal  state  of  our  Penitentia- 
ries. 

Are  our  Penitentiaries  places  which  are  dreaded  by  convicts.' 
Is  the  anticipation  of  being  immured  within  their  walls,  gi  lerally 
productive  of  terror  ?  The  observation  and  experience  of  years 
convince  us  to  the  contrary.  Our  Penitentiaries  are  communi- 
ties by  themselves.  They  contain  so  many  societies  of  men  of 
the  same  feelings,  of  similar  principles,  and  like  dispositions, 
erected  by  force  of  statute.  They  are  so  many  commonwealths, 
insulated  from  the  rest  of  mankind.  Look  at  the  Penitentiaries 
of  Pennsylvania,  New- York,  Massachusetts,  and  the  other 
states  ;  what  is  the  spectacle  which  they  present  ?  Several  hun- 
dred convicts  are  mingled  together,  without  regard  to  age,  atro- 
city of  guilt,  or  prospect  of  reform.  All  the  characteristics  of 
social  intercourse  are  presented.  There  is  neither  shame  nor 
repentance.  All  have  been  placed  there  by  the  arm  of  justit  e, 
for  violating  the  laws  of  the  land,  and  there  is  but  little  ground 
for  contrast  or  reproach.  The  members  of  these  little  commu- 
nities are  comfortably  clothed,  comfortably  fed,  condemned  to 
moderate  labour,  and  easy  tasks,  permitted  to  have  their  hours 
of  ease  and  recreation,  indulged  in  talking  over  their  exploits  in 
♦he  paths  of  guilt,  suffered  to  form  new  schemes  for  future  exe- 


24 


cutioii,  and  to  wear  away  their  term  of  service,  under  circum- 
stances calculated  to  deprive  it  of  every  salutary  effect.  This 
state  of  things  is  truly  appalling,  and  we  cannot  draw  a  picture 
in  more  vivid  colours,  than  the  one  which  is  presented,  of  the 
oldest  State  Prison  in  the  union,  by  the  report  on  the  Peniten- 
tiary System  in  the  State  of  Pennsylvanian,  on  the  27th  of  Jan- 
uary, 1821.  "  It  seems,"  says  the  Report,  "  to  be  generally  ad- 
mitted, that  the  mode  at  present  in  the  Penitentiary,  does  not 
reform  the  prisoner.  It  was  intended  to  be  a  school  of  refor- 
mation, but  it  is  now  a  school  of  vice.  It  cannot  be  otherwise, 
where  so  many  depraved  beings  are  crowded  together,  without 
the  means  of  classification  or  of  adequate  employment.  There 
were  in  confinement  on  the  first  instant,  four  hundred  and  nine- 
ty-four men,  and  forty  women,  convicts.  A  community  of  in- 
terest and  design  is  excited  among  them,  and  instead  of  refor- 
mation, ruin  is  the  general  result.''  ( m) 

We  must  then  draw  the  conclusion  that  the  construction  of 
our  Penitentiaries  is  wholly  defective,  and  calculated  to  defeat 
the  object  of  the  system.  Large  numbers  of  convicts  are  pro- 
miscuously crowded  together  :  a  sentence  to  the  Sate  Prison  is 
not  viewed  with  that  terror  that  tends  to  prevent  crimes  ;  the 
allurements  and  pleasures  of  social  intercourse,  are  kept  up . 
the  ignominy  of  punishment  is  forgotten  ;  and  with  many  hundred 
criminals,  the  State  Prison  is  viewed  like  the  transportation  to 
Botany  Bay,  by  felons  in  Great  Britain,  as  a  welcome  assy- 
lum. 

The  next  error  which  we  shall  notice,  as  pertaining  to  our 
Penitentiaries,  is  the  entire  want  of  classification,  if  we  except 
the  division  of  convicts  into  sexes.  Men  and  women  are  kept 
separately  and  here  the  rule  of  discrimination  stops.  This  i» 
indeed  the  natural  consequence  of  the  evil  manner  in  which  our 
prisons  are  constructed  ;  yet  defective  as  they  are  in  this  res- 
pect, it  would  be  practicable,  in  many  cases,  to  prosecute  some 
more  distinction  among  felons  than  appears  at  the  present  time. 

(m)  Report  to  Pennsylvania  Senate,  by  Mr-  Ragaet,  Jan.  1821,  and  letter  of 
Mr.  Mierckeii. 


25 


We  know  of  no  prison  in  the  United  States,  where  the  convicts 
are  divided  into  classes,  and  kept  in  classes,  with  a  reference  to 
their  own  good.    When  once  placed  within  the  precincts  of  the 
Penitentiary,  the  grade  of  the  offence,  the  age,  the  disposition, 
the  indications  of  repentance,  or  the  proof  of  their  hardihood 
are  all  forgotten,  and  they  comprise  one  great  aggregate  of  of- 
fenders.   The  prevailing  object  is  to  make  their  labour  as  pro- 
ductive as  possible,  and  to  this  object  every  consideration  seems 
subservient.    Here  the  most  obdurate  and  experienced  offender 
who  has  grown  grey  in  the  perpetration  of  crimes,  and  who  has 
become  familiar  with  the  walls  and  discipline  of  prisons,  who 
with  equal  thoughtlessness  and  hardihood,  contemns  the  laws  of 
God  and  man,  is  seen  the  daily,  and  in  many  prisons,  the  night- 
ly companion  of  the  unfortunate  youth,  who,  from  neglect  of 
parental  regard  and  watchfulness  the  want  of  timely  education, 
and  the  inculcations  of  correct  early  habits,  have  committed  a 
single  offence  of  a  minor  grade,  and  has  been  sentenced  for  the 
shortest  term  the  law  allows.  Offenders  for  manslaughter,  burglary, 
larceny,  counterfeiting,  and  swindling,  the  felon  of  sixty  and  the 
felon  of  fifteen, — he  who  has  shed  man's  blood,  or  put  the  mid- 
night torch  to  his  neighbour's  dwelling,  and  threatened  the  ex- 
istences of  a  whole  family,  and  he  who  has  passed  a  counterfeit 
bank  note  of  five  dollars,  are  doomed  to  a  condition,  where  they 
are  placed  together  upon  equality,  and  become  daily  associates. 
Can  we  rationally  talk  of  the  reform  of  convicts  under  such  cir- 
cumstances ?  What  is  man  ?  The  creature  of  habit.    We  assert 
not  the  doctrine  that  all  men  are  naturally  possessed  with  an 
equal  love  of  virtue  and  an  equal  abhorrence  of  vice  ;  but  we  do 
assert  that  habits  of  thought,  and  habits  of  action,  create  settled 
rules  of  conduct  that  are  grounded  on  moral  excellence — fortify 
the  character  against  all  temptation, — and  that  they  may  also 
destroy  the  last  trait  of  honesty,  truth  and  rectitude,  and  render 
character  the  blackest  type  of  human  guilt.    How  many  crimes, 
how  many  misfortunes,  how  many  sacrifices  of  worth  and  promise, 
have  been  produced  by  indiscreet  and  vicious  associations,  that 
existed  before  men  have  violated  the  law,  and  fallen  under  the 


4 


26 


iientence,  of  a  criminal  tribunal ;  and  yet  by  means  of  our 
Penitentiaries  we  establish  in  the  execution  of  our  laws,  the 
most  desperate,  profligate,  and  dangerous  association,  that  can 
well  be  established  by  human  invention,  and  expect  that  such  a 
policy  will  prevent  the  perpetration  of  crimes,  present  a  salutary 
example,  and  restore  those  who  compose  them,  reclaimed  and 
regenerated  to  the  bosom  of  society  !  A  State  Prison  must  ne- 
cessarily be  filled  with  every  description  of  offenders,  from  him 
who  is  the  least  obnoxious  to  the  laws,  to  him  who  is  the  most 
flagrant  aggressor.  Felons,  according  to  the  ordinary  principles 
of  our  nature,  will  assimilate  in  moral  character  by  intercourse  ; 
and  the  standard  which  will  be  approached  and  adopted,  will  not 
be  the  lowest,  but  the  highest  degree  of  turpitude  The  har- 
dened convict  will  maintain  his  abandoned  principles,  and  the 
novice  in  guilt  will  become  his  pupil  and  his  convert.  The 
greater  oflender  will  not  go  to  the  lesser;  the  tendency  is  the 
reverse.  It  requires  no  reflection  to  perceive,  that  without  clas- 
sification, our  Penitentiaries,  instead  of  preventing  crimes,  and 
reformhig  convicts,  directly  promote  crimes,  and  augment  the 
moral  baseness  of  convicts.  They  are  so  many  schools  of  vice 
— they  are  so  many  seminaries  to  impart  lessons  and  maxims, 
calculated  to  banish  legal  restraints,  moral  considerations,  pride 
of  character,  and  self-regard.  It  is  notorious  that,  in  all  public 
prisons,  their  tenants  soon  adopt  certain  principles  of  govern- 
ment and  conduct,  among  themselves,  and  that  they  soon  assume 
the  form  and  semblance  ofa  distinct  and  independent  community. 
They  have  their  watchwords,  their  technical  terms,  their  pecu- 
liar language,  and  their  causes  and  objects  of  emulation.  Can 
we  see  any  thing  in  this  view,  but  consequences  the  most  seri- 
ous and  alarming  ?  Who  fill  our  Penitentiaries  ?  Take  those 
of  Richmond,  Baltimore,  Philadelphia,  New-York,  and  Boston 
— and  we  shall  find  their  tenants  composed  of  renegadoes  from 
England,  Ireland,  Scotland,  France,  Italy,  and  other  parts  of  the 
continent  of  Europe,  united  to  convicts  who  are  natives  of  the 
United  States.  Many  of  them  were  finished  adepts  before  they 
reached  our  shores,  and  united  to  such  of  our  own  citizens  as  arc 


27 


equally  well  skilled  in  the  perpetrations  of  crimes,  they  form  a 
combination  every  way  calculated  to  extirpate  the  last  principle 
of  honesty  in  the  human  breast.  With  this  congregation  of  robbers, 
burglars,  thieves,  counterfeiters,  and  swindlers,  of  every  descrip- 
tion, we  shut  up  all  classes  of  minor  offenders,  and  they  mingle 
together,  for  months  and  years,  without  distinction.  Many  of 
them  are  of  respectable  parentage,  and  have  been  decently,  and 
sometimes  well  educated ;  their  hold  on  the  respect  of  the 
world  is  not  entirely  broken  ;  the  feelings  of  repentance  and 
self-respect,  are  not  extinguished  ; — and  they  have  not  with- 
drawn their  eyes  from  the  paths  that  lead  to  reform,  and  to  res- 
toration. Many  of  them  possess  dispositions  that  are  easily 
swayed,  and  sensibilities  that  are  easily  excited  by  reason  and 
truth,  and  under  proper  discipline,  could  be  reclaimed  and  re- 
formed. But  can  we  rationally  look  for  such  results,  when  they 
are  turned  into  a  Penitentiary,  with  hundreds  of  criminals,  who 
are  daily  rendered  more  wicked  by  example  and  precept  ?  As 
to  those  State  Prisons  which  have  been  erected  in  the  interior 
of  our  country,  they  too  have  their  desperate  and  hardened  ten- 
ants, whose  evil  communications  are  palpably  seen  in  the  most 
baleful  consequences.  Let  us  ask  any  sagacious  observer  of 
human  nature,  unacquainted  with  the  internal  police  of  our  Pen- 
itentiaries, to  suggest  a  school  where  the  commitment  of  the 
most  pernicious  crimes  could  be  taught  with  the  most  effect ; 
could  he  select  a  place  more  fertile,  in  the  most  pernicious  re- 
sults, than  the  indiscriminate  society  of  knaves  and  villains  of  all 
ages  and  degrees  of  guilt,  with  strong  and  furious  passions,  har- 
dy constitutions,  and  sound  health,  comfortably  clothed,  sump- 
tuously fed,  and  left  to  the  performance  of  trifling  duties  ?  Your 
Committee  are  not  indulging  in  speculation.  They  say  that  our 
Penitentiaries  are  destitute  of  the  classification  of  convicts,  of 
any  regard  to  the  degree  of  individual  guilt,  and  any  regard  to  age 
— and  without  any  regard  to  reclamation.  We  say  that  an  in- 
discriminate intercourse  exists  among  the  convicts,  and  that 
the  different  shades  of  guilt  and  atrocity  are  blended  together. 
We  say  that  both,  by  day  and  by  night,  with  few  or  no  excep- 


28 


lions,  they  communicate  with  each  other ; — that  the  most  per- 
nicious principles  may  be  inculcated,  the  worst  of  passions  infla- 
med, the  most  profligate  maxims  be  rendered  familiar — and  all 
shame,  honesty,  and  self  respect  be  destroyed.  We  appeal  to 
any  Penitentiary  in  the  United  States,  to  show  us  the  moral 
misapplication  of  this  discription.  If  there  are  exceptions,  they 
are  in  some  of  the  new  Penitentiaries,  where  the  prisoners  are 
few,  and  the  evils  here  spoken  of,  not  yet  palpably  developed. 
The  State  Prison  in  Ohio,  erected  five  years  ago,  already  se- 
verely experiences  the  truth  of  what  we  here  lay  down.  Such 
has  been  the  information  derived  by  the  Chairman  of  the  Com- 
mittee, in  a  pf  rsonal  conversation  witii  one  of  the  most  distin- 
guished, and  public  spirited  men  of  lliat  Slate. 

We  shall  here  adduce  some  proofs  to  illustrate  the  assertions 
in  which  we  have  indulged.  We  could  produce  more  than  will 
be  referred  to,  were  it  essential  and  requisite.  We  shall  begin 
with  Pennsylvania,  and  quote  the  heport  to  the  Senate  of  that 
State,  before  referred  to.  "  There  were  in  confinement,"  says 
that  well  written  and  lucid  document,  "  on  the  first  of  January, 
1821,  four  hundred  and  twenty-four  men.  and  forty  \Nomen 
convicts.  For  want  of  room  to  separate  them,  the  young  a-<so- 
ciate  with  the  old  offenders  :  the  petty  thief  becomes  the  pupil 
of  the  highway  robber;  the  beardless  boy  listens  with  delight 
to  the  well  told  tale  of  daring  exploits,  and  hair- breadth  escapes, 
of  hoary  headed  villany,  and  from  the  experience  of  age 
derives  instruction,  which  fits  him  to  be  a  pest  and  terror  to 
society.  Community  of  interest  and  design  is  excited  among 
them,  and  instead  of  reformation,  ruin  is  the  general  result." 

"This  is  a  short  but  melancholy  picture;  it  is  but  faintly 
drawn,  but  it  is  sufficiently  strong  to  excite  attention  in  every 
benevolent  mind.  The  Grand  Juries  of  our  district,  have  for 
years  past,  presented  to  the  public  a  similar  portrait  of  our  once 
boasted  Penitentiary,  and  the  late  Executive  has  very  judicious- 
ly directed  the  attention  of  the  Legislature  of  the  State  to  the 
subject."  (n) 


(n)  Report  to  Pennsylvania  Legii'Iature,  and  Mr,  Mecrekin's  letter. 


29 


We  shall  next  refer  to  the  Statistical  View  of  the  operation  of 
the  Penal  Code  of  Pennsylvania,  prepared  and  published  by  the 
Society  for  alleviating  the  miseries  of  public  prisons.  "  So 
many,"  says  this  publication,  "  are  crowded  together  in  so  small 
&  space,  and  so  much  intermixed,  the  comparatively  innocent 
with  the  guilty ;  the  young  offender,  and  often  the  disobedient 
servant  or  apprentice,  with  the  most  experienced  and  hardened 
culprit ;  that  the  institution  already  begins  to  assume  the  cha- 
racter of  a  European  Prison,  and  a  seminary  for  every  vice,  in 
which  the  unfortunate  being  who  commits  the  first  offence, 
and  knows  none  of  the  arts  of  methodised  villany,  can  scarcely 
avoid  contamination,  and  leads  to  extreme  depravity,  and  with 
which,  from  the  insufiBciency  of  room  to  form  separate  ac- 
commodations, he  must  be  associated  in  his  confinement."  (o) 
We  shall  next  cite  the  words  of  Mr.  Hopkinson,  whose  celebrity 
as  a  lawyer  and  a  statesman,  give  him  a  passport  to  the  acquaint- 
ance of  the  American  people.  His  whole  letter  will  be  found 
in  the  appendix.  "  So  far"  says  he  "from  reformation  having 
been  the  effect  of  the  System  as  heretofore  practised,  one  of  its 
worst  evils  is,  that  by  throwing  a  crowd  of  criminals  together, 
necessarily  of  different  degrees  of  depravity,  they  become  equal- 
ly wicked  and  corrupt,  and  skilled  in  the  various  contrivances 
to  commit  crimes  and  elude  justice.  It  is  a  college  for  the  edu- 
cation of  men  to  prey  upon  society.  A  novice,  who  if  kept 
from  company  worse  than  himself,  might  have  been  reclaimed 
from  his  first  attempts,  is  here  associated  with  old,  hardened 
and  skilful  offenders  ;  he  hears  with  envy  and  admiration,  the 
stories  of  their  prowess  and  dexterity  ;  his  ambition  is  roused, 
his  knowledge  extended  by  these  recitals,  and  every  idea  of  re- 
pentance is  scorned  ;  every  emotion  of  virtue,  extinguished. 
Instances  of  this  sort  are  numerous,  both  in  the  United  States 
and  in  England.  I  consider  this  herding  of  criminals  together, 
as  a  vital  defect  in  the  Penitentiary  System."  (p) 

A  letter,  full  of  sound  sense,  from  Bishop  White,  President 


(o)  Statistical  View. 

(p)  Mr.  Hopkioson's  letter  in  the  App 


so 


of  the  Philadplphia  Society  for  alleviating  tlie  miseries  of  pub- 
lic prisons,  whose  persevering  and  benevolent  eflbrts  are  well 
knciwn,  goes  to  prove  the  facts  above  stated,  (q) 

As  we  pass  from  the  Philadelphia  to  the  New-York  Peniten- 
tiary, we  find  nothing  but  the  strongest  evidence  to  prove  the 
total  want  of  any  judicious  classification  of  prisoners.  Our  State 
Prison  has  been  crowded  for  years. — Convicts  of  all  ages,  and  all 
degrees  of 'turpitude,  have  been  placed  together,  and  all  the 
evil  and  fatal  consequences  of  vicious  communications  have 
been  exhibited.  It  was  built  to  accommodate  three  hundred 
persons,  and  more  than  seven  hundred  have  been  confined  in  it 
at  once— many  of  them  foreigners  from  all  the  ends  of  the 
earth.  Your  Committee  need  appeal  to  no  documents,  to  shew 
(he  total  want  of  a  proper  division  of  convicts  in  our  Peniten- 
tiary. The  defect  is  well  known  to  the  whole  community,  and 
is  as  obvious  to  the  eye,  as  the  prison  itself.  Culprits  come  out 
far  more  depraved  and  desperate,  than  they  were  when  they  re- 
ceived their  sentence.  The  young  are  advanced  in  the  paths 
of  guilt;  the  old,  confirmed  in  their  baseness ;  morals,  instead 
of  being  improved,  are  broken  down  ;  conscience,  instead  of 
being  restored  to  a  tone  of  reproof,  is  blunted  and  banished. 
N(»  statement  of  ours  can  be  too  strong  on  this  point.  The 
fact  stands  complete  and  conclusive. 

The  State  Prison  in  Massachusetts  forms  no  exception  to  the 
general  want  of  classification.  Unfortunately,  the  circulars  ad- 
dressed to  several  of  the  first  men  in  Massachusetts,  by  your 
Committee,  have  not  been  answered  or  noticed  in  a  single  in- 
stance ;  we  must  therefore  rely  on  that  information  which  has 
been  derived  from  other  sources.  We  feel  authorised  to  assert, 
that  there  has  ever  been  a  neglect  of  that  division  and  separa- 
tion of  convicts,  that  discrimination  between  old  and  young 
olTenders,  and  that  prevention  of  evil  communication,  which 
constitutes  the  grand  defect  under  consideration.  We  are,  how- 
ever, recently  informed,  that  it  is  at  present  less  to  be  appre- 
hended in  this  case  than  formerly.  ( r) 

(q)  See  A  pp. 
,  (r)  Vide  North  Am  Review,  No.  8,  Oct.  1821. 


31 


Perhaps  no  Penitentiary  in  the  United  States  has  been  mana- 
ged with  more  wisdom,  care  and  uniformity  than  the  one  in 
Virginia.  Samuel  P.  Parsons,  of  the  society  of  Friends,  who 
has  long  been  the  Superintendant,  and  who,  if  any  man  has  capa- 
city and  zeal  to  perfect  the  System,  possesses  them  in  an  emi- 
nent degree,  and  who  has  spared  no  effort  to  accomplish  the 
original  end  of  the  institution,  informs  us  that  the  want  of  classi- 
fication of  convicts  is  one  of  the  evils  which  have  caused  the 
partial  disappointment  of  its  friends  and  patrons.  There  is  too 
much  intercourse  among  the  prisoners,  too  many  sleep  together, 
and  the  contagion  of  vice  is  apparent,  (s) 

The  State  Prison  of  New-Hampshire  has  been  erected  but 
for  a  few  years.  The  number  of  felons  is  not  great,  and  yet  the 
the  want  of  a  division  into  classes  is  already  perceptible.  Gov. 
Plumer,  the  late  distinguished  Chief  Magistrate  of  the  State,  on 
whose  sound  and  judicious  opinion,  the  Committee  place  great 
reliance,  and  to  which  they  shall  again  refer,  observes  that  "  ef- 
fectual measures  should  be  adopted,  to  separate,  in  the  Peni- 
tentiary, old  offenders  from  the  young  and  inexperienced,  oth- 
erwise the  latter,  instead  of  being  reformed  will  become  adepts 
in  crimes  ;  and  when  the  term  of  their  confinement  expires,  they 
will  return  to  society,  more  wicked  and  abandoned,  than  when 
they  left  it."  (t) 

Judge  Woodberry,  of  the  New-Hampshire  Supreme  Court, 
remarks  :  "  The  prisoners,  according  to  the  enormity  ol  their 
crimes  should  be  classed,  and  matched  with  some  distinctive 
badge.  They  should,  during  the  day,  be  kept  more  quiet  and 
secluded  from  either  society  or  conversation,  and  during  the 
night  wholly  separated  from  each  other."  (u) 

The  letter  from  the  hon.  Daniel  Clussman  one  of  the  most 
distinguished  la\vyers  in  Vermont,  and  in  New-England,  and  a 
careful  and  sound  legislator,  observes,  when  speaking  of  the 
Penitentiary  in  that  state  :  "  The  prisoners  are  only  exposed  to 


(i)  Vide  Mr.  Parson's  letter  in  the  app. 

(0  Vide  Gov.  Plumer's  letter  in  app. 

(u)  Vide.  Judge  Woodberry's  letter  ia  app. 


32 


corruption ;  a  young  man  who  has  been  detected  and  punished 
for  the  the  first  crime  he  has  committed,  and  who  has  no  settled 
habits  of  vice,  is  confined  with  old  and  hardened  offenders,  and 
those  will  have  an  influence  on  the  young  mind.  He  will  in  a 
measure  look  up  to  them." 

The  Penitentiary  in  Maryland,  and  the  one  in  Ohio,  erected 
about  six  years  ago,  go  on  with  an  exhibition  of  the  same  radi- 
cal defects,  and  although  the  State  Prison  in  Connecticut  is  dif- 
ferent from  any  other  in  the  United  States,  yet  Governor  Wol- 
cott  remarks  in  his  very  interesting  communication,  which  we 
shall  more  fully  notice,  "  that  it  has  been  a  defect  in  the  estab- 
lishment, that  the  means  of  discrimination  between  convicts  of 
different  degrees  of  enormity,  do  not  sufiiciently  exist."  (v)  On 
this  alarming  error  in  the  Penitentiary  System,  we  trust  that 
enough  has  been  said  in  this  place.  Its  existence  and  its  tenden- 
cy, require  no  further  illustration  here. 

The  want  of  room,  is  another  defect  that  applies  to  several 
of  the  State  Prisons,  and  is,  in  some  measure,  the  result  of  their 
construction.  In  Philadelphia,  New-York,  Baltimore,  and 
Charleston,  it  would  have  destroyed  the  ability  to  classify  con- 
victs, had  it  been  a  part  of  the  penitentiary  police  to  have  resor- 
ted to  this  policy.  It  has  produced  another  evil  next  to  the  one 
last  mentioned  if  not  still  more  fatal — the  exercise  of  the  par- 
doning power.  In  no  state  has  this  defect  been  so  alarming 
and  disastrous  as  in  our  own.  The  Judges  of  our  Supreme 
Court'  have  actually  recommended  convicts  to  pardon,  and  the 
Governor  of  the  state  has,  in  innumerable  instances,  granted 
pardons  to  make  room  for  new  criminals.  Want  of  a  place  to 
secure  new  offenders,  rendered  this  baneful  state  of  things  abso- 
lutely necessary  if  the  laws  were  administered  at  all.  (w)  In 
Pennsylvania,  the  most  serious  difilculties  have  arisen  from  the 
want  of  more  extensive  accommodations,  and  Massachusetts, 
previous  to  the  erection  of  the  state  of  Maine,  and  its  separation 
from  the  parent  state,  and  an  alteration  of  the  Criminal  Code, 

(»>)  See  Gov.  Wolcott's  letter  in  the  app. 

(w)  Keport  of  Coicmittee  to  I-ow-York  Senate,  March  7,  1817- 


33 


that  places  young  offenders  in  the  County  prisons,  great  disad- 
vantages arose  from  the  same  cause.  In  New- York  and  Penn- 
sylvania, these  evils  will  be  diminished  hereafter,  by  the  erec- 
tion of  new  prisons,  although  they  here  deserve  much  conside- 
ration among  the  causes  that  have  produced  the  practical  failure 
of  the  State  Prison  System. 

We  now  come  to  a  defect,  that  has  been  one  of  the  radical 
causes  of  disappointment  in  our  Penitentiary  System,  and  one 
whose  existence  will  ever  defeat  the  most  perfect  Criminal  Code 
that  human  wisdom  can  frame.  We  refer  to  the  frequent  ex- 
ercise of  the  pardoning  power.  This  evil,  although  most  deep- 
ly felt  in  all  the  states,  has  been  endured  with  the  most  fatal  re- 
sults whenever  the  Penitentiary  System  has  been  tried  on  a  large 
scale.  It  has  been  found,  to  the  last  degree,  pernicious  in  Penn- 
sylvania, New- York,  and  Massachusetts.  Unless  more  caution 
is  hereafcer  exercised  with  regard  to  this  suspension  of  justice, 
we  may  as  well  close  and  abandon  our  Penitentiaries  so  far  as 
prevention  of  crimes  is  concerned. 

In  every  department  of  law,  there  are  certain  fundamental 
maxims,  that  truth,  experience,  and  universal  assent,  render  sa- 
cred and  unquestionable.  Thus  all  jurists  and  legislators  adopt 
the  principle,  that  the  certainty  of  punishment  is  the  prevention 
of  crimes.  This  was  a  favourite  feature  in  the  writings  ofBee- 
caria.  It  was  laid  down  by  Sir  Samuel  Romily,  one  of  the 
greatest  lawyers  which  England  ever  had,  that  could  punishment 
be  reduced  to  absolute  certainty,  a  very  slight  penalty,  would 
prevent  every  crime  that  was  the  result  of  premeditation.  And 
we  might  well  ask,  if  any  offence,  of  consequence,  was  ever 
committed  where  there  was  not  a  full  conviction,  in  the  mind  of 
the  perpetrator,  that  he  should  escape  the  grasp  of  justice The 
felon  does  not  weigh  the  gain  of  liis  deed,  with  the  punishment 
which  the  law  denounces  against  him,  and  strike  the  balance ; 
but  he  connects  together  the  acquisition  and  the  belief  of  eluding 
justice.  Would  any  man  rob  the  mail  of  the  United  States  if 
he  knew  that  death  was  his  certain  doom  f  Would  any  man 
pass  a  five  dollar  bank  note,  if  he  knew  that  five  years  iropris- 

5 


34 


onnieiit  w  uuld  be  bis  destiny  ?  No  one  can  rationally  pretend 
it.  What  then  is  the  effect  of  granting  frequent  pardons  ?  Does 
it  not  go  directly  to  diminish  the  certainty  of  punishments  ?  A 
pardon  disarms  the  law,  and  is  a  destruction  of  punishment.  If 
pardons  are  often  granted,  what  is  their  consequence  on  the  mind 
of  public  offenders  ?  Not  only  do  they  calculate  on  the  gene- 
ral belief  of  escape,  but  they  reflect,  if  even  that  confidence 
should  be  ill-placed,  they  will  be  fit  subjects  of  executive  cle- 
mency, and  thus  is  combined  in  their  thoughts  the  double  pros- 
pect of  going  unpunished.  This,  therefore,  holds  out  a  direct 
encouragement  to  the  desperate  and  evil  minded,  and  contra- 
venes that  vital  requisite  of  every  Criminal  Code,  on  which  the 
Marquis  Beccarie,  and  every  succeeding  writer  has  laid  so  much 
stress.  Besides,  if  the  pardons  are  granted,  without  due  discri- 
mination, there  is  extreme  and  barefaced  injustice  in  the  policy  ; 
and  it  is  a  sound  maxim  in  jurisprudence,  as  well  as  in  morals, 
that  he  who  attempts  to  punish  another  for  offending  against 
justice,  should  himself  be  just. 

This  is  the  way  to  render  justice  a  mockery,  and  weaken  the 
respect  of  the  community  for  the  laws.    Four  or  five  hun- 
dred convicts  are  confined  in  a  Penitentiary  :  some  for  robbery, 
burglary  and  swindling,  and  some  for  passing  a  five  dollar  note 
or  stealing  a  garment.    The  robber,  the  burglar  and  the  swind- 
ler are  pardoned,  and  he  who  passes  the  note  or  takesthe  gar- 
ment are  kept  in  for  months  and  years.    What  must  be  the  re- 
flection of  convicts  on  such  an  administration  of  justice  ?  This 
is  no  speculation :  the  most  notorious   felons  have  again, 
and  again,  been  pardoned  from  our  Penitentiaries,  while  the 
young  and  inexperienced  culprits,  for  committing  crimes  of 
comparative  petty  magnitude,  are  kept  in  for  years.    Is  this  the 
way^to  render  our  prisons  places  of  reform  and  amendment  ? 
Is  this  the  way  to  render  law  and  justice  sacred  in  the  eye  of 
criminals One  of  the  great  objects  of  punishment,  is  said  by 
many  writers,  to  be  example,  and  the  restraining  consequences 
to  flow  from  it.    Example,  to  be  effectual,  should  be  uniform. 
It  should  not  be  severe  and  desolating  in  one  case,  and  wholly 


35 


destitute  of  force  in  another.  What  beneficial  effect  can  we 
expect  from  this  source,  when  it  is  doubtful  who  will  and  who 
will  not  suffer  after  sentence  ?  When  it  is  questionable,  whether 
the  most  flagrant,  or  most  excusable  offender  will  endure  the 
heaviest  punishment?  Reasoning  is  unnecessary  to  illustrate 
the  ruinous  consequences  of  this  abuse  of  executive  justice.  It 
strikes  at  the  root,  and  contravenes  the  ends  of  all  Criminal 
Codes. 

This  evil  has  not  been  felt  in  all  the  states.  Its  consequen- 
ces have  been  most  apparent  in  the  states  where  Penitentia- 
ries were  early  resorted  to,  and  what  is  more  to  be  regretted, 
want  of  room  for  the  confinement  of  convicts,  and  not  a  regard 
for  the  constraining  appeals  of  clemency,  has  been  the  moving 
cause,  which  has  led  to  its  existence.  The  state  of  New-York 
has  unfortunately  furnished  the  most  striking  and  melancholy 
prcjof  of  the  correctness  of  our  remarks,  of  any  state  in  the  con- 
federacy. We  shall  here  refer  to  a  report  of  certain  commis- 
sioners, appointed  to  examine  into  the  State  Prison,  relative 
to  its  expenditures.  This  document  remarks,  that  "  the  Judges 
of  the  Supreme  court  have  been  obliged  to  recommend  for 
pardon,  an«l  the  executive  to  exercise  his  constitutional  power 
of  pardoning,  merely  for  the  purpose  of  making  room  for  the  re- 
cejiiion  of  new  offenders.  The  sentence  of  the  law  must,  in  the 
first  intanre  be  complied  with  ;  the  convict  must  be  received  in 
the  prison,  and  put  to  labour  ;  but  before  his  term  of  service  has 
half  espire.i,  it  has  been  found  indispensable  to  get  rid  of  him 
in  order  to  make  room  for  others,  under  similar  sentences.  The 
consequence  has  been,  that,  while  on  the  one  hand  those,  whose 
dispositions  and  habits  have  prepared  them  for  the  perpetra- 
tion of  crime,  have  been  encouraged  to  go  on  and  commit 
their  depredations  in  the  hope  of  at  least  partial  if  not  absolute 
impunity,  (for  that  portion  of  the  community,  no  doubt,  perfect- 
ly understand  the  subject,  and  know  well  the  calculation  they 
may  make  upon  it) — on  the  other,  the  institution  has  been  sub- 
jected to  the  disadvantage  of  continual  change ;  by  the  time 
one  set  of  workmen  have  been  taught  to  labour,  and  have  been 


36 


qualified  to  make  some  return  for  the  expense  they  have  occa- 
sioned, they  are  discharged  from  confinement,  and  a  new  set 
substituted  in  their  place.  And  thus  all  the  inconvenience  and 
expense  of  preparing  them  for  usefulness  is  constantly  borne, 
and  all  the  advantages  expected  to  result  from  it  almost  as  uni- 
formly relinquished.  On  referring  to  the  reports  for  the  five  years 
which  have  been  mentioned,  it  is  found  that  within  that  period, 
seven  hundred  and  forty  convicts  have  been  pardoned  and  only 
seventy-seven  discharged  by  the  expiration  of  their  sentences. 
And  the  number  of  pardons  within  the  year  just  ended,  is  stated 
by  the  inspectors  to  have  been  even  greater,  and  more  dispro- 
portionate to  the  number  of  other  discharges  than  in  any  former 
year.  Nor  will  the  force  of  this  fact  be  in  any  degree  impaired, 
by  a  consideration  of  the  moral  effects  of  these  pardons  upon 
the  convicts  themselves.  Of  all  those  who  have,  within  the 
above  period,  been  committed  for  second  and  third  offences, 
about  two  thirds  have  been  discharged  from  their  former  sen- 
tences by  pardon.  And  of  twenty-three,  the  whole  number 
convicted  of  second  and  third  offences  in  the  year  last  reported, 
(1815)  twenty  had  been  previously  pardoned,  and  only  three  dis- 
charged by  the  ordinary  course  of  law."  (x) 

Since  this  report  was  made,  some  mitigation  of  the  evil  has 
existed,  in  consequence  of  the  advantages  afforded  by  the  Au- 
burn Penitentiary.  But  still  the  evil  is  among  us.  Great  num- 
bers are  annually  pardoned  out  of  the  State  Prison  in  the  city 
of  New-York,  on  the  grounds  stated  in  the  report  alluded  to, 
and  sometimes  we  fear  from  a  mistaken  policy  of  displaying 
principles  of  humanity.  It  is  to  be  regretted  (hat  many  of  our 
most  influential  citizens  are  constantly  found  joining  in  recom- 
mendations for  pardons  to  the  executive,  without  reflection  on 
the  impropriety  of  defeating  the  purpose  of  the  laws  ;  and  it  is 
more  regretted,  that  jurors,  after  they  have  convicted  a  felon 
under  the  obligations  and  solemnities  of  an  oath,  turn  round 


{x)  Report  of  Commissioners  to  the  Legislature  of  New-Tork,  1817. 


37 


and  join  a  petition  that  renders  their  own  verdict  a  nulity,  and 

the  forms  of  justice  a  fruitless  ceremony,  (y)  Whoever  attends 
the  criminal  courts  of  this  State,  and  more  particularly  the 
court  of  General  sessions  of  the  city  and  county  of  New-York^ 
may  perceive  the  palpable  tendency  of  a  frequent  exercise  of 
the  pardoning  power.  Criminals  are  constantly  arraigned,  tried 
and  convicted,  who  a  few  months,  and  oftentimes  a  few  days 
before,  were  dismissed  from  prison  by  a  pardon  from  the  go- 
vernor. We  shall  here  present  the  views  and  sentiments  of  one 
of  our  statesmen  on  this  point,  who  has  spoken  in  words  more 
forcible  than  any  we  can  adopt,  and  whose  remarks  are  entitled 
to  peculiar  respect  from  his  sound  experience  as  a  lawyer.  We 
refer  to  the  speech  of  Ogden  Edwards,  Esq.  in  the  late  Con- 
vention of  this  State.  When  speaking  of  the  effect  of  granting 
pardons,  he  said,  "  that  by  the  indiscreet  use  of  the  pardoning 
power,  the  administration  of  justice  had  become  relaxed  ;  that 
if  not  checked,  we  should  soon  have  to  erect  State  prisons  in 
perhaps  every  county  in  the  State.  The  exercise  of  the  power 
of  pardoning  is  pleasant,  it  is  humane,  it  is  agreeable  to  the 
best  feelings  of  the  human  heart ;  but  sad  experience  has  taught, 
that  the  interests  of  the  community  require,  that  the  civil  arm 
should  be  brought  to  bear  with  power  upon  malefactors.  It 
was  a  remark  of  an  eminent  Judge,  now  gone  down  to  the  grave, 
that  mercy  to  the  criminal  was  cruelty  to  the  State.  If  you 
exercise  this  pardoning  power  to  the  extent  that  has  been  done, 
what  will  be  the  consequences .''  The  rest  of  society  will  be 
exposed  to  the  depredations  of  villains.  The  laws  should  be 
exercised  with  a  strong  and  resolute  hand.  Our  Penal  Code  is 
mild  ;  and  the  manner  of  punishment  is  meted  out  to  all  in  the 
proportion  they  deserve.  If  a  reasonable  doubt  exists,  the 
felon  is  acquitted.  But  should  he  be  convicted,  there  is  still  a 
discretion  reposed  in  the  court  for  his  benefit.  Why  has  the 
pardoning  power  been  so  fully  and  frequently  exercised  ?  Why 
are  our  prison  doors  so  often  thrown  open,  and  villains  let  loose 
to  prowl  upon  society  It  is  because  our  executive  has  been 
too  much  influenced  by  feelings  of  humanity.    The  governor 


(ff)  See  Annual  Report,  tc 


38 


must  nerve  himself  against  their  solicitations,  and  act  with  a 
cunsciousiioss  that  he  must  account  to  the  people  for  the  man- 
ner in  which  he  uses  this  pardoning  power.  Even  in  Great- 
Britain,  a  pardon  never  passes  the  great  seal,  without  contain- 
ing a  recital  of  the  causes  for  which  it  is  extended.  But  in  this 
State  they  are  granted  without  a  single  reason  for  it.  And  af- 
ter the  inhabitants  of  a  country  have  exercised  their  vigilance 
in  detecting  the  felon  ;  after  the  jurors  have  convicted,  and 
judges  sentenced  him,  the  interposing  hand  of  the  executive 
rescues  him  from  punishment.  Unless  we  abolish  this  system, 
we  may  as  well  open  the  prison  doors  at  once.  They  enter  no- 
vices in  iniquity,  and  remain  long  enough  to  become  professors 
of  all  its  arts.  This  is  the  practical  operation  of  the  system, 
and  unless  we  nerve  ourselves  against  it,  sooner  or  later  the 
rights  of  the  people  of  this  State  will  be  held  by  a  moral 
precarious  tenure.  This  sickly  sympathy  is  wearing  away  the 
foundation  of  our  laws.  Placed  here  as  one  of  the  guar- 
dians of  the  rights  and  privileges  of  the  people,  I  wish  to  have 
such  a  provision  inserted  in  the  Constitution,  as  shall  prove  an 
effectual  check  upon  vice."* 

The  tendency  of  too  frequently  exercising  the  pardoning 
power,  has  been  found  equally  pernicious  in  the  State  of  Penn- 
sylvania, as  far  as  practice  has  developed  the  principle,  (z)  The 
same  remark  applies,  in  a  diminished  degree,  to  other  states. 
This  grand  defecrt  will  be  further  illustrated  by  the  words  of  the 
late  Governor  of  New-Hampshire.  They  are  full  of  sound 
sense  and  correct  observation.  "  The  power  of  granting  par- 
dons" he  remarks  foj  "  should  be  seldom  exercised.  The  cer- 
tainty of  punishment  has  a  great  if  not  a  most  powerful  influence 
upon  the  wicked  in  restraining  them  from  the  commission  of 
crimes.  The  government  should  therefore  avoid  every  thing 
that  has  a  necessary  tendency  to  impair  the  force  of  that  cer- 
tainty.   A  hardened,  subtle  offender,  dead  to  moral  feelings, 

(a)  vide  Mr.  Hopkinsons'  letter  in  appendix. 
(a)  Vide  his  letter  in  app. 
•Vide  Deb.  of  Con;  p.  125. 


39 


calculates  upon  the  many  chances  he  has  to  escape  punishment. 
His  hopes  are  strong  that  he  shall  not  be  suspected  ;  that  if  sus- 
pected, he  shall  be  able  to  avoid  arrest;  that  if  arrested,  proof 
will  not  be  obtained  to  convict  him  ;  and  if  convicted,  that  he 
shall  be  pardoned.    That  spirit  of  benevolence,  which  often 
prompts  public  officers  to  pardon  the  guilty,  does  honor  to  the 
heart,  but  it  impairs  the  security  of  society.    During  the  four 
years  I  was  governor  of  this  state,  I  pardoned  but  two  of  the 
convicts  who  were  confined  in  the  State  Prison,  although  the 
applications  for  the  first  two  or  three  years  were  numerous,  and 
supported  by  the  recommendations  of  many  respectable  charac- 
ters. /  did  not  consider  myself  at  liberty  to  question  the  propriety 
of  the  opinion  of  the  court  who  rendered  the  judgment.    I  believ- 
ed they  were  the  only  tribunal  competent  to  pronounce  upon  the 
innocence  or  guilt  of  the  accused  ;   and  that  their  own  decision 
ousrht  to  be  conclusive."  (b) 

Mr.  Raymond  of  Baltimore,  whose  letter  will  be  read  with 
deep  interest,  indulges  in  the  following  observations,  when 
speaking  of  the  pardoning  power  in  the  state  of  Maryland.  He 
says  that  "  some  of  the  facilities  of  escaping  punishment  might 
be  easily  remedied,  and  with  this  view,  I  would  deprive  the  go- 
vernor of  the  power  of  pardoning  and  granting  a  nolle  prosequi. 
I  consider  the  power  to  be  attended  with  the  most  mischievous 
consequences,  and  should  be  taken  away  entirely.  In  the  first 
place  this  must  be  a  most  unpleasant  power  for  an  honest  and 
humane  man  to  exercise.  In  the  next  place,  there  can  be  no 
hope  in  the  present  state  of  society,  that  it  will  be  exercised 
with  rigor  and  impartiality.  Those  who  have  strong  friends  will 
obtain  a  nolle  prosequi,  or  a  pardon,  be  their  crimes  small  or 
great.  Those  who  have  not  friends,  will  never  obtain  either  the 
one  or  the  other.  But  these  are  by  no  means  the  worst  conse- 
quences of  this  power.  It  is  the  anchor  of  hope  to  the  accu- 
sed, and  the  convict,  and  there  is  very  little  likehhood  of  peni- 


(6)  Vide  Gov.  Plumer's  letter  in  app.  The  cases -mentioned  justified  the  par- 
don—one was  insane,  and  the  other  in  the  last  stage  of  life,  without  hope  of  re- 
covery. 


40 


ence  or  reformation  so  long  as  there  is  hope  of  escaping  pun- 
ishment. A  single  spark  of  hope  will  support  a  mind  which, 
without  it,  would  sink  into  contrition  and  repentance.  It  should, 
therefore,  be  a  principal  object  to  extinguish  every  ray  of  hope 
of  escape  in  the  mind  of  the  accused  criminal,  and  of  the  fe- 
lon." (s) 

Mr.  Parsons,  in  his  letter  on  the  Penitentiary  System  of  Virgi- 
nia, {t )  considers  the  granting  of  pardons  one  cause  of  its  fail- 
ure to  answer  the  required  end ;  and  the  North  American  Re- 
view, whose  investigations  on  all  subjects  do  honor  to  the 
American  nation,  remarks,  when  speaking  of  the  Massachusetts 
Penitentiary,  that  "  out  of  fourteen  hundred  and  seventy-one 
convicts,  who  have  been  sent  to  the  Massachusetts  State  Prison, 
during  a  period  of  sixteen  years,  two  hundred  and  forty-two 
have  been  pardoned,  and  twenty  of  them  have  been  afterwards 
committed  again."  How  many  of  these  same  pardoned  con- 
victs have  been  committed  to  prison  in  other  states  than  Mas- 
sachusetts we  are  not  informed,  and  we  cannot  here  forbear  to 
express  a  most  decided  repugnance  to  the  practice  that  has 
prevailed  in  this  and  in  other  states,  of  pardoning  criminals,  on 
condition  of  their  leaving  the  state  in  which  they  have  offended. 
It  is  immoral,  unjust,  and  disgraceful.  It  is  opening  your  pris- 
on doors  and  sending  forth  so  many  outlaws  to  mar  the  peace 
and  plunder  the  property  of  citizens  in  neighbouring  sections 
of  the  union. 

The  Committee  trust  that  they  have  indulged  in  a  sufficient 
latitude  of  remark  on  this  defect.  Its  tendency  to  prevent  the 
end  of  every  Criminal  Code  is  palpable.  This  truth  has  been 
seen  and  felt  in  other  countries  besides  our  own.  Beccaria, 
Sir  Samuel  Romily,  and  Mr.  Colquhoun  have  reprehended  it 
on  the  other  side  of  the  water,  and  Sir  James  Mcintosh,  in  a 
debate  some  three  years  ago,  in  the  British  House  of  Commons, 
on  sonie  of  the  Penal  laws  of  Great  Britain,  stated  to  that  body. 


(«)  Vide  letter  from  Daniel  Raymond.  Esq.  app. 
(()   "  Appendix. 


41 


"  that  one  pardon  contributed  more  to  excite  the  hope  of  es- 
cape, than  twenty  executions  to  produce  the  fear  of  punishment ; 
and  that  an  able  and  ingenious  writer  who,  as  a  magistrate,  was 
peculiarly  competent  to  judge,  forcibly  argued  that  pardons  con- 
tributed to  the  increase  of  crime."  (e) 

The  next  error  which  the  Committee  would  notice,  is  the 
frequent  change  of  superintendants,  governors  directors  and 
managers,  in  several,  if  not  in  all,  of  the  Penitentiaries  in  the 
United  States.  No  system  of  laws  can  prove  salutary  and  effec- 
tual, when  its  administration  is  grossly  defective.  More  espe- 
cially a  system  intended  to  reform  the  most  depravpd  and  des- 
perate portion  of  mankind,  and  one  which  is  designed  to  extin- 
guish the  worst  of  passions,  and  destroy  the  most  vicious  habits, 
should  be  uniform  and  unchanging  in  its  operations.  This  has 
not  been  the  case  in  the  immediate  administration  of  the  Peni- 
tentiary System.  Unfortunately  party  politics  have  pervaded  the 
different  states  of  the  Union,  and  all  places  of  power  and  trust, 
have  turned  on  their  constant  fluctuations.  Not  even  our  State 
Prisons  have  been  spared.  The  men  who  have  been  entrusted 
with  their  supervision  have  been  displaced  again  and  again,  and 
others  been  called  in  to  supply  their  places.  Removals  and  ap- 
pointments, have  been  governed  by  party  feelings,  and  made 
on  party  grounds,  to  give  strength  and  consequence  to  this  or 
that  pohtical  sect.  What  has  been  the  result  ?  As  soon  as  one 
set  of  supervisors,  or  governors,  have  become  accustomed  to 
the  duties  of  their  station  ;  as  soon  as  they  have  been  able  to 
take  that  comprehensive  view  of  a  system,  that  detects  errors 
and  suggests  remedies,  their  powers  have  been  vacated,  and  their 
functions  transferred  to  others.  These,  in  their  turn,  have  been 
swept  aside,  to  gratify  the  wishes  of  new  applicants.  In  this 
state  of  things,  the  most  pernicious  results  have  been  found. 
The  government  of  our  Penitentiaries  has  been  often  changed, 
old  laws  have  been  relaxed,  and  new  internal  regulations  Lave 
been  established.    Rash  experiments  have  been  made.  N(u- 

(e)  Deb.  in  House  of  Com.  IS  19. 


6 


42 


is  this  all ;  we  fear  that  the  selection  of  individuals  to  superin- 
tend our  Penitentiaries  has  not  always  been  the  most  judicious. 
Party  favouriteism  has  had  its  dominion  in  this  respect. 

In  Pennsylvania  and  New- York,  political  changes  have  been 
more  frequent  than  in  Massachusetts,  Virginia,  Maryland  and 
other  states  where  Penitentiaries  have  been  established.  Had 
the  selection  of  governors  and  superintendants,  in  the  two  states 
first  mentioned,  been  judicious,  and  been  made  with  a  regard  to 
the  peculiar  relation  that  must  exist  between  several  hundred" 
human  beings  guilty  of  crimes  and  placed  in  custody  for  punish- 
ment, example,  and  reform  ;  had  men  been  selected  for  their 
public  zeal,  their  benevolence  and  their  capacity  to  devote  time 
and  reflection  to  their  duty ;  and  more  than  this,  had  men  who 
have  been  oftentimes  appointed,  been  preserved  steadily  in  their 
stations  until  their  experience  and  observation  had  taught  them 
wisdom  and  judgment,  many  of  the  evils  now  enumerated  might 
have  been  prevented.  As  the  system  has  been  administered, 
two  more  disadvantages,  kindred  to  the  others,  have  here  arisen. 
In  the  first  place,  there  being  no  assurance  of  permanency  in 
the  enjoyment  of  these  stations,  good  men  have  been  constrain- 
ed to  decline  them  ;  and  in  the  second  place,  where  they  have 
accepted  them,  the  precarious  tenure  with  which  they  were 
held  destroyed  that  ambition,  and  extinguished  that  hope  of 
reform,  that  would  otherwise  have  been  cherished. 

The  Committee  consider  that  the  cause  of  failure  in  the  sys- 
tem here  spoken  of,  is  so  apparent  in  its  consequences,  and  so 
foreign  in  its  nature  to  the  system  itself,  that  it  requires  nothing 
more  in  this  plaee  than  the  brief  notice  which  we  have  confer- 
red upon  it. 

The  want  of  a  school  for  Juvenile  offenders,  has  been  ano- 
ther, and  a  stable  evil,  as  has  also  been  the  want  of  a  proper 
system  of  moral  and  religious  instruction.  The  first  deside- 
ratum, has  long  been  palpable,  more  especially  in  those  Pen- 
itentiaries that  are  situated  in  our  large  cities,  or  in  their  vi- 
cinity. As  population  clusters,  the  civil  relations  of  life  mul- 
tiply, moral  habits  become  less  strict,  education  is  less  dif- 


48 


fused,  and  a  portion  of  the  youthful  part  of  the  community  are 
more  neglected  ;  temptations  to  vice  are  stronger  and  more  nu- 
merous, and  young  convicts  bear  a  greater  ratio  to  old  ones,  than 
in  the  interior.  Hence  the  Criminal  Courts  of  the  cities  and 
larger  towns,  frequently  sentence  boys  from  fourteen  to  eighteen 
years  of  age,  to  a  long  term  of  service  in  our  State  Prisons. 
Whoever  has  entered  these  abodes,  has  seen  youth  of  various 
ages  from  fourteen  to  twenty  years  old,  wearing  away  a  portion 
of  the  brightest  and  most  precious  period  of  their  existence 
among  felons  of  the  most  abandoned  description,  without  the 
means  of  improving.  It  is  impossible  that  they  should  not  come 
forth  prepared  for  evil  deeds.  The  worst  examples  are  con- 
stantly before  their  eyes.  Morality  is  ridiculed :  honesty  is 
dispised,  and  vice  is  set  off  with  every  attraction  that  hardened 
guilt  can  suggest.  Religious  service  we  believe  is  generally 
performed  in  our  state  prisons  once  a  week.  This  does  not 
seem  adequate  to  produce  the  effects  to  be  desired.  We  think 
that  the  chaplains  of  our  Penitentiaries  should  often  visit  the 
criminals,  and  afford  that  instruction,  and  give  those  mild  and 
conciliating  counsels  that  conspire  to  awaken  and  restore  the 
mind  to  its  lost  tone  of  moral  energy. 

We  shall  conclude  this  division  of  the  Report  by  noticing  one 
more  defect  attendant  on  the  administration  of  j_the  Peniteni- 
tiary  System,  although  no  way  intrinsic,  or  inherent  in  its  consti- 
tution. We  refer  to  the  great  regard  which  has  been  paid,  in 
the  different  states,  to  the  revenue  to  be  derived  from  the  la- 
bours of  convicts  in  the  State  Prisons,  without  paying  due  res- 
pect to  the  fact,  that  the  end  of  the  system  itself  might  be 
defeated  by  such  policy.  It  is  very  natural,  and  it  is  very  ne- 
cessary that  the  States  should  pay  a  strict  attention  to  the  finan- 
cical  resources,  and  think  of  debt  and  credit.  Still  it  is  a  source 
of  regret  to  see  narrow  fiscal  views  bear  so  strongly  on  the  pub- 
lic mind  as  not  only  to  defeat  a  great  moral  purpose,  but  even 
to  increase  expenditures  which  it  is  intended  to  diminish. 

Two  considerations  strike  the  mind  on  this  point :  first,  the 
object  of  the  Penitentiary  System;   and  secondly,  the  great 


44 


increase  of  the  necessary  expense  attending  it,  in  consequence 
of  its  failure  to  produce  expected  results  What  then  was  the 
object  of  this  system  in  the  United  States?  It  has  already 
been  mentioned  ;  it  was  the  suppression  of  crime  and  offences, 
and  the  reform  of  convicts.  What  should  be  the  first  thought 
of  those  who  have  the  charge  of  its  administration  ?  Not  its 
annual  income,  not  the  amount  of  revenue  that  can  be  derived 
yearly,  not  the  most  lucrative  end  to  which  the  toils  and  labours 
of  the  convicts  can  be  devoted  ;  but  the  government,  discipline 
and  internal  arrangement,  which  will  be  most  conducive  to  the 
great  object  of  the  system.  If  mingling  young  and  old  crimi- 
nals in  the  same  apartment ;  if  crowding  convicts  together,  by 
night  or  by  day  ;  if  tolerating  a  state  of  tilings  that  permits  a 
constant  intercourse  among  culprits,  and  affords  those  social 
recreations,  and  those  effusions  of  spirit,  that  extinguish  a  sense 
of  shame,  and  cross  the  salutary  tendency  of  punishment,  pro- 
mote the  saving  of  expenditure,  they  defeat  the  purpose  of  the 
system  to  which  they  are  intended  to  be  subservient,  and  render 
vain  and  useless,  to  a  great  extent,  the  labours  of  the  Legisla- 
ture and  the  integrity  and  firmness  of  the  jurist  and  the  magis- 
trate. In  the  second  place,  the  attempts  at  economy  now  re- 
sorted to,  by  those  who  have  the  management  and  control  of 
our  Ptnitentiary  establishments,  are  abortive,  since  the  fact  is 
clearly  evident,  that  instead  of  preventing,  when  viewed  in  their 
full  operation,  they  augment  expense.  The  most  effectual 
method  of  lessening  disbursements  would  be  the  diminution  of 
crimes  and  offences,  by  the  due  execution  of  the  laws;  and  so 
far  as  their  execution  fails  to  promote  this  diminution,  so  far  the 
public  are  laid  under  pecuniary  liabilities,  that  might  be  avoid- 
ed. If  the  construction  and  internal  regulations  of  our  Peni- 
tentiaries were  judicious,  there  would  be  less  commitments  for 
crimes,  and,  of  course,  less  expense  in  the  yearly  management 
of  our  Penitentiaries.  In  truth,  revenue,  as  connected  with  the 
system  of  which  we  are  treating,  should  never  enter  into  the 
views  of  our  different  state  governments,  as  a  primary  object. 
It  should  never  clash,  nor,  in  any  manner,  come  in  competition 


45 


with  the  most  secure  and  competent  means  of  preventing 
crimes,  and  of  changing  the  characters  of  vicious  men,  who 
fall  under  the  sentence  of  the  lav?.    And  yet  one  of  the  grand 
complaints  against  the  Penitentiary  System  is,  that  it  will  not 
support  itself.    The  states  are  brought  annually  in  debt,  and  the 
people  are  compelled  to  lose,  instead  of  gaining  wealth  by  its 
existence.     It  presents  a  singular  phenomenon  in  political 
economy,  where  a  Criminal  Code  is  a  source  of  public  revenue. 
Heretofore  it  has  been  supposed  in  every  rational  state  of  socie- 
ty, that  there  would  be  a  depraved,  indolent  and  desperate  por- 
tion of  the  community,  who  in  any  event  would  prove  a  tax  to 
the  rest  of  the  people.    If  suffered  to  roam  at  large,  they 
would  prey  upon  the  peace,  violate  the  security,  and  plun- 
der the  property  of  their  fellow  citizens.    If  confined  to  hard 
labour,  they  might  still  compel  the  commonwealth  to  contribute 
out  of  its  annual  resourses  to  their  support.    But  after  all,  is 
not  the  commonwealth  the  gainer  by  their  confinement,  even  if 
the  State  Prison  that  holds  them  does  not  pay  its  way?  For 
what  would  convicts  do,  were  they  in  the  full  enjoyment  of  their 
personal  freedom  ?    They  would  commit  constant  depredations 
on  the  community,  and  live  in  indolence  and  profligacy,  on  the 
avails  of  their  guilty  deeds.    We  must  compare  what  little  they 
would  earn  by  honest  labour  for  their  support,  if  left  at  large, 
with  what  they  earn  for  their  maintenance  when  confined  in  the 
Penitentiary — not  forgetting,  at  the  same  time,  what  society 
would  lose  by  their  thefts,  swindlings,  counterfeitings,  passing  of 
forged  notes,  and  other  offences,  and  then  strike  the  balance. 
In  this  view  of  the  subject,  no  very  alarming  disparity  would 
appear.   But  this  is  not  all.   When  abandoned  men  are  suffered 
to  be  abroad  in  the  world,  with  all  their  evil  propensities  in  full 
vigor,  they  spread  around  them  a  moral  contamination.  They 
withdraw  others  from  the  paths  of  peaceful  industry,  and  dimin- 
ish the  productive  energies  of  the  country. 

Several  of  our  Penitentiaries  support  themselves  ;  others,  it 
isprobable,  would  also,  could  there  be  stability  in  the  tenure  of  the 
offices  and  trusts  which  are  connected  with  them.  The  Commit- 


46 


tee  would  certainly  inculcate  a  prudent  regard  for  frugality ;  but 
let  not  an  ill-timed  parsimony  defeat  moral  ends,  vitally  identi- 
fied with  the  tranquility  and  safety  of  society ;  and  not  only 
this,  but  even  go  to  defeat  its  own  immediate  object,  by  the  con- 
sequences to  which  it  must  lead.  The  state  of  the  country  is 
becoming  more  favourable  to  the  debt  and  credit  of  our  Peni- 
tentiaries. We  are  placing  more  reliance,  than  heretofore,  on 
our  internal  resources,  and  more  dependence  on  our  domestic 
manufactures,  especially  on  those  of  the  coarser  kinds,  and  we 
may  find  the  labours  of  convicts  attended  with  a  more  certain 
remuneration.  But  whether  this  prove  the  case  or  not,  we 
should  either  renounce  the  Penitentiary  System  altogether,  and 
resort  to  some  other  method  to  punish  and  prevent  crimes,  or 
pursue  such  a  course  of  policy  in  its  government  as  will  render 
it  the  most  effective  in  its  bearings  and  operations.  This  has 
not  been  done  when  profit  has  been  the  moving  spring  of  ac- 
tion. 

We  have  mentioned  the  want  of  proper  diet  as  a  defect  wor- 
thy of  notice.  Convicts  who  are  consigned  to  hard  labour 
should  be  supplied  with  food  that  is  coarse,  wholesome  and 
nourishing,  and  they  should  have  it  in  sufficient  quantities  to 
meet  the  requisitions  of  nature.  But  here  we  should  stop. 
Every  thing  calculated  to  inflame  the  passions,  and  sharpen  the 
evil  propensities  of  men  ;  every  thing  of  a  stimulating  nature  ; 
every  thing  calculated  to  render  a  Penitentiary  attractive  and 
pleasant,  as  a  place  of  gratification  to  the  appetite,  should  be 
strictly  avoided.  The  use  of  ardent  spirits  and  exhilarating 
liquors  and  fluids,  in  any  shape,  excepting  as  a  medicine  should 
be  rigidly  precluded.  This  has  not  heretofore  been  done  in 
many  of  the  State  Prisons.  A  certain  portion  of  spirituous 
liquor  has  been  dealt  out  daily  to  each  convict,  and  their 
food  has  been  far  better  and  more  luxurious,  than  that  of  two 
thirds  of  the  honest  mechanics  in  the  community.  The  Com- 
mittee do  not  say  that  this  has  been  the  case  in  every  state  ;  but 
it  has  been  the  case  in  their  own,  and  in  othei-s.  If  we  are  to 
render  public  prisons,  places  where  the  desperate  and  depraved 


47 


in  the  land  find  comfort  and  indulgence  ;  if  tbey  prefer  to  move 

and  breathe  in  their  walls,  to  being  in  the  possession  of  personal 
liberty  ;  if  when  they  leave  their  gates,  they  cast  back  a  linger- 
ing iook,  on  the  daily  gratifications  which  ihey  enjoyed,  the 
terror  of  punishment  is  gone,  and  the  dread  of  law  is  destroyed. 

These  are  the  views  of  the  Committee,  as  to  the  defects 
which  have  produced  a  failure  of  the  Penitentiary  System  in 
the  United  States.  Others,  perhaps,  of  a  collateral  nature,  might 
be  enumerated  ;  but  the  leading  evils  have  been  fully  designa- 
ted, arranged,  and  amplified.  We  will  concede,  that  the  system 
has  not  answered  the  expectations  of  its  advocates  ;  -but  a  con- 
cession on  the  other  hand,  is  equally  demanded,  that  it  has  not 
bad  a  fair  trial,  or  if  it  has  had  a  rational  test,  proof  has  been 
-afforded  that  it  can  be  rendered  more  effectual  than  any  other 
mode  of  punishment.  In  Pennsylvania,  for  a  number  of  years, 
while  there  was  a  judicious  selection  of  inspectors,  while  there 
was  uniformity  in  the  internal  regulations  of  the  system,  and 
while  there  was  sufficient  room  for  convicts,  its  operation  was 
found  peculiarly  salutary,  and  the  hopes  and  confidence  of  men 
gathered  round  it.  In  the  state  of  New-York,  we  can  also 
say  with  confidence,  that  for  several  years,  while  the  manager 
were  men  of  public  spirit,  and  of  sufficient  leisure  to  attend  to 
the  careful  and  uniform  management  of  our  State  Prison,  that 
it  was  productive  of  many  public  blessings  that  have  since  dis- 
appeared, from  the  existence  of  neglect,  and  from  various  abu- 
ses that  have  been  pointed  out  in  our  general  summary. 

And  even  admitting  all  that  the  opponents  of  the  system  as- 
sert, one  question  should  be  always  candidly  borne  in  mind  : 
suppose  that  the  Penitentiary  System  had  never  been  establish- 
ed in  the  United  States,  what  would  have  been  our  condition  ? 
It  is  believed  by  the  Committee,  that  it  would  have  been  far 
more  intolerable  than  the  present  state  of  our  criminal  laws.  It 
will  be  perceived  that  the  system  has  led  to  a  change  in  the 
Criminal  Codes  of  every  state  in  the  Union,  as  far  as  it  has  been 
adopted.  They  have  been  fundamentally  reformed  and  san- 
guinary and  ignominious  punishments,  renounced.  Death,  crop- 


48 


fjing  the  earsj  burning  the  hand,  exposure  in  the  pillory,  the 
public  infliction  of  stripes,  and  confinement  without  labour  in 
the  county  jails,  for  a  term  of  years,  have  been  abandoned,  and 
confinement  to  hard  labour  substituted.  And  after  all,  there  is 
no  data  to  authorize  the  conclusion,  that  crimes  have  been  more 
numerous  or  atrocious,  than  they  would  have  been,  under  the 
old  laws.  Reformation  was  rarely,  if  ever,  produced  by  their 
administration,  and  many  criminals  have  been  driven  to  despe- 
ration by  marks  of  disgrace ;  whereas  several  instances  can  be 
pointed  out,  where  convicts  have  been  reclaimed  and  reformed 
in  our  Stale  Prisons,  and  been  sent  forth  with  a  character  for 
industry,  sobriety,  and  honesty.  It  is  not  practicable  to  insti- 
tute any  thing  like  a  fair  and  conclusive  comparison  between  the 
operation  of  our  present  Criminal  Codes,  and  the  severe  and  cru- 
el laws  which  they  have  superseded.  Population  has  increased, 
^nd  the  history  of  nations  shows  us,  that  crimes  and  population 
do  not  always  bear  the  same  proportion  to  each  other.  The 
density  of  the  latter  has  a  material  influence.  Two  hundred 
thousand  people  residing  in  the  space  of  two  miles  square,  will 
show  a  much  more  formidable  criminal  calendar,  than  the  same 
number  scattered  over  a  whole  country,  or  a  whole  state-  Vi- 
ces are  produced  by  the  intercourse  of  tli«  profligate  ;  and  bad 
passions  mingle  together,  influence  each  other,  and  break  forth 
in  deeds  of  guilt  and  desperation.  Inequalities  in  the  condition 
of  individuals,  become  more  apparent ;  property  is  less  equally 
distributed  ;  poverty  is  more  perceptible,  and  want  and  misery 
more  common.  New  relations  in  society  are  created,  new  laws 
are  required,  new  offences  arise,  daily  transactions  are  multipli- 
ed, and  the  avenues  to  temptations  are  rendered  more  nume- 
rous. Hence,  it  would  not  be  judging  by  a  fair  standard,  to 
take  the  records  of  criminal  courts,  thirty  years  ago,  and  the  re- 
cords of  the  same  kind  of  tribunals,  at  the  present  day,  and  af- 
ter making  allowance  for  the  excess  of  population  at  the  pre- 
sent, over  the  former  period,  institute  the  contrast,  and  draw  a 
general  deduction.  But  let  the  Penitentiary  System  be  abolish- 
ed, for  a  short  time,  and  let  the  laws  that  were  formerly  in  force, 


49 


be  again  called  into  being,  and  administered  for  two  years  to 
come,  and  we  should  then  be  able  to  derive  some  data  on  which 
our  conviction  could  rest.    If  we  may  judge  of  the  operation  of 
Penal  Codes  in  other  countries,  and  in  other  ages,  where  tbey 
have  been  severe  and  bloody — where  life  has  been  held  cheap, 
and  corporal  inflictions  necessary,  we  shall  find  nothing  to  in- 
duce the  renunciation  of  our  present  laws.    And,  indeed,  defec- 
tive as  the  Penitentiary  System  has  been,  in  its  administration, 
and  disappointed  as  ardent  and  sanguine  minds  have  been,  in  its 
result,  we  shall  yet  endeavour  to  shuvv,  that  no  substitute,  which 
the  feelings,  the  sentiments,  and  the  habits  of  the  American 
people  would  tolerate,  can  be  embraced  with  effects  and  conse- 
quences more  salutary  than  those  which  have  appeared  under  it. 
We  see  crimes  and  offences  multiply  :  we  forget  the  changing 
state  of  society  ;  we  forget  the  increase  of  population  ; — we  for- 
get the  new  restraints  that  are  naturally  demanded,  and  the  fresh 
temptations  that  are  created  ;  we  forget  what  might  be  the  ten- 
dency of  different  laws,  and  attribute  the  whole  evil  to  the  Peni- 
tentiary System.    Reason  and  reflection  will  correct  this  error 
in  judgment,  and  lead  us  to  different  views. 

Thus  far,  the  Committee  have  proceeded  to  point  out  what 
they  consider  to  be  the  leading  defects  of  the  Penitentiary  Sys- 
tem, in  this  country.  They  now  enter  on  the  second  part  of 
their  Report :  In  what  manner  can  these  defects  be  remedied, 
and  how  can  the  System  be  rendered  effectual .''  In  designating 
the  foregoing  errors,  many  of  the  improvements  to  be  suggested, 
have  been  negatively  anticipated.  The  Committee  recom- 
mend : 

First.  That  the  internal  construction  of  our  Penitentiaries  be 
altered. 

Secondly.  That  solitary  confinement  be  resorted  to. 

Thirdly.  That  when  solitary  confinement  is  not  adopted,  the 
classification  of  convicts  be  rigidly  embraced. 

Fourthly.  That  every  convict  sleep  in  a  solitary  cell. 

Fifthly.  That  Penitentiaries  be  erected  for  juvenile  offen- 
ders. 

7 


60 


Sixthly.  That  a  suitable  diet  be  provided  and  adopted  with 
uniformity. 

Seventlily.  That  the  pardoning  power  be  never  exercised  ex- 
cepting in  extreme  cases. 

Eighthly.  That  more  caution  be  exercised  in  the  selection 
and  appointment  of  the  inspectors,  governors,  superintendants, 
managers,  agents,  and  keepers  who  have  the  controul  and  super- 
vision of  our  Penitentiaries,  and  that  there  be  more  stability  in 
the  tenor  of  their  offices. 

Ninthly,  That  the  sentence  to  hard  labour  be  enforced,  with 
certainty,  rigor,  and  without  favour  or  partiality,  of  any  kind. 

Tenthly.  That  a  strict  and  undeviating  regard  be  paid  to 
cleanliness. 

Lastly.  That  less  regard  be  paid  to  revenue  In  the  adminis- 
tration of  the  Penitentiary  System. 

In  speaking  of  the  construction  of  Prisons,  it  is  not  the  inten- 
tion of  the  Committee  to  propose  specific  plans  for  their  erec- 
tion. It  is  immaterial  what  may  be  the  order  and  style  of  the 
architecture  of  a  Penitentiary  ;  it  is  immaterial  what  may  be  its 
length,  breadth,  height  and  form  of  exterior  ; — will  it  answer  the 
ends  of  reformation  here  proposed  This  is  the  only  question 
that  is  interesting  to  the  Committee,  at  the  present  moment. 

A  Penitentiary  should  be  sufiiciently  large  and  spacious  to 
admit  of  the  execution  of  any  system  of  internal  police,  and  of 
any  interior  arrangement,  in  the  treatment  of  convicts,  that  may 
be  deemed  necessary.  The  plan  on  which  it  is  contemplated 
to  construct  the  new  Penitentiary,  to  be  erected  in  the  city  of 
Philadelphia,  by  the  Pennsylvania  government,  meets  the  views 
of  the  Committee,  and  will  allow  the  full  application  of  the  re- 
form, for  which  they  contend.  In  the  first  place,  there  is  to  be 
a  lot  of  ground  in  the  shape  of  a  parallelogram,  surrounded  by  a 
wall  six  hundred  and  fifty  feet  long,  and  thirty-six  feet  highk 
"Within  this  wall,  the  prison  is  to  be  erected,  and  to  have  two 
hundred  and  fifty  cells.  They  are  to  be  built  at  some  distance 
from  the  outer  wall,  to  be  one  story  high,  and  about  twelve  feet 
square  ; — each  cell  to  have  a  yard  about  it,  of  12  feet  by  20. 


51 


This  arrangement  will  permit  each  prisoner  to  be  kept  in  com- 
plete solitude,  by  day  and  by  night,  to  eat  and  drink  alone,  and 
to  perform  labonr  by  himself,  throughout  the  day,  when  labour 
is  enjoined.  The  new  Penitentiary  at  Pittsburgh,  in  the  state 
of  Pennsylvania,  has  a  double  row  of  cells,  making  two  hundred 
and  fifty  in  number,  attached  to  the  outer  wall,  showing  an 
exterior  of  an  octagon  shape.  The  cells  are  one  story  high, 
with  a  separate  yard  to  each  cell.  The  principles  adopted  in 
the  construction  of  these  Penitentiaries,  would  permit  the  full  ap- 
plication of  the  recommendations  for  reform  which  follow,  and 
thpy  may  be  taken  as  a  data  on  which  our  reasons  can  be  ground- 
ed A  striking  contrast  will  be  exhibited,  when  they  are  com- 
pared with  the  old  Penitentiaries  of  Pennsylvania  and  New- 
York,  and  those  which  the  other  states  in  the  union  have  con- 
structed. 

The  Committee  now  come  forward  and  advocate  a  change  in 
our  Penitentiary  System,  that  will  be  radical  and  fundamental. 
They  are  fully  persuaded  that  nothing  less  than  solitary  con- 
finement will  ever  enable  us  to  give  it  a  fair  and  full  trial, 
in  the  United  States.  If  this  fails,  on  its  full  ond  complete 
adoption,  then  the  System  is  intrinsically  defective,  and  out  of 
the  compass  of  perfection.  There  is  nothing  hazarded  in  this 
remark.  If  it  were  made  by  every  friend  of  the  System,  on 
both  sides  of  the  ocean,  nothing  would  be  jeopardized,  for  there 
is  the  strongest  reasons  to  believe,  that  with  this  improvement, 
a  confinement  in  a  Penitentiary  would  prove  the  most  effectual 
and  salutary  punishment  that  has  ever  been  devised,  since  the 
origin  of  human  government  and  human  laws.  And  the  Com- 
mittee are  happy  to  find  this  doctrine  sanctioned,  by  most  of 
the  very  instructive,  and  interesting  letters,  which  follow,  in  the 
appendix  to  this  Report. 

Wherever  solitary  confinement  has  been  tried,  it  has  produ- 
ced the  most  powerful  consequences.  In  the  State  Prison  of 
Philadelphia,  offenders  of  the  most  hardened  and  obdurate  des- 
cription— men  who  entered  the  cells  assigned  them,  with  every 
oath  and  imprecation  that  the  fertility  of  the  English  language 


52 


affords — beings,  who  scoffed  at  every  idea  of  repentance  and  hu- 
mility— have,  in  a  few  weeks,  been  reduced,  by  solitary  con- 
finement, and  low  diet,  to  a  state  of  the  deepest  penitence. 
This  may  be  set  down  as  a  general  result  of  this  kind  of  punish- 
ment, in  that  prison.  In  the  New- York  Penitentiary,  many 
striking  instances  of  penitence  and  submission,  have  also  been 
afforded.  Where  prisoners  were  peculiarly  refractory  and  vi- 
cious, they  have  been  placed  in  solitary  cells,  and  insulated  from 
every  human  creature.  Even  the  messengers  who  carried  them 
their  food,  were  enjoined  not  to  utter  a  syllable,  in  the  discharge, 
of  their  diurnal  duties.  The  most  overwhelming  consequences, 
were  the  result.  The  spirit  of  the  offender  was  subdued,  and  a, 
temper  of  meekness,  and  evidences  of  contrition,  displayed.  A 
resort  to  this  discipline,  never  failed  to  accomplish  its  end. 

But,  it  will  be  asked,  do  we  recommend  an  entire  suspension 
of  all  labour  in  our  Penitentiaries .''  VVe  answer  in  the  negative. 
W,e  are  sensible  that  such  a  proposition  would  not  meet  with 
currency  in  the  different  states,  nor  do  we,  at  present,  perceiv^ 
the  necessity  of  its  general  adoption.  But  the  Committee, 
would  recommend,  that  solitary  confinement  be  adopted,  to  a,, 
far  greater  extent,  than  has  heretofore  been  thought  of  in  this 
country.  They  would  separate  this  punishment  into  two  kinds  : 
first,  solitary  confinement,  without  labour ;  and  secondly,  solita- 
ry confinement,  with  labour  Could  these  two  methods,  in  the 
treatment  of  offenders,  be  universally  and  exclusively  adopted, 
in  the  various  Penitentiaries  of  this  country,  and  all  intercourse, 
and  all  kinds  of  communication,  among  prisoners,  be  prevented  ; 
could  they  be  wholly  precluded  from  even  seeing  each  others' 
faces,  a  new  era  would  soon  appear,  in  the  history  our  criminal 
laws. 

It  appears  to  the  Committee,  that  in  all  ca9es  where  the  con- 
vict is  of  a  desperate  character,  and  where  his  crimes  are  great 
and  manifold,  that  his  imprisonment  should  be  spent  in  complete 
solitary  confinement,  free  from  all  employment,  all  amusement, 
all  pleasant  objects  of  external  contemplation.  Let  his  diet  be 
moderate,  and  suitable  to  a  man  placed  in  a  narrow  compass  for 


53 


tlie  purpose  of  reflecting  on  his  past  life,  and  on  the  injuries 
which  he  has  done~  to  society.  This  would  produce  other  ef- 
fects on  experienced  offenders,  than  imprisonment,  with  several 
hundred  brother  villains,  where  free  intercourse,  by  day  and  by 
night,  is  permitted  ; — where  rich  soups,  and  airy  apartments  are 
prepared  for  their  reception  ; — and  where  a  shool  for  guilt,  is 
established — where  all  the  evil  passions  of  man  flourish  in  rank 
and  poisonous  luxuriance.  Six  months  solitary  confinement,  in  a 
cell,  would  leave  a  deeper  remembrance  of  horror,  on  the  mind 
of  the  culprit,  and  inspire  more  dread,  and  prove  a  greater  safe- 
guard against  crimes,  than  ten  years  imprisonment  in  our  Peni- 
tentiaries, as  they  now  are  managed.  Who  but  would  shudder 
at  the  bare  idea  of  returning  again  to  the  dreary  abodes  of 
wretchedness,  sorrow,  and  despair,  in  the  narrow  limits  of  a  sol- 
itary cell The  memory  of  long  and  miserable  days,  and  of 
sleepless  and  wearisome  nights,  once  spent  there,  would  come 
over  the  mind  like  the  dark  cloud  of  desolation,  and  terrify,  and 
agrrest  the  guilty,  in  the  career  of  outrage.  Employment  tends 
to  destroy  the  efllects  here  pointed  out.  It  diverts  the  mind, 
calls  forth  a  constant  exertion  of  the  physical  faculties,  and  ren- 
ders men  unconscious  of  the  lapse  of  time.  To  felons^  whose 
minds  should  be  broken  on  the  rack  and  the  wheel,  instead  of 
their  bodies,  and  who  can  only  have  their  obstinate  and  guilty 
principles  crushed  and  destroyed,  by  severe  treatment ;  no  kind 
of  labour  should  be  given,  while  it  is  intended  that  solitude, 
complete  and  entire  solitude,  should  be  left  to  do  its  eflectual 
work.  Sooner  or  later,  this  mode  of  punishment  will  be  adop- 
ted in  the  United  States.  It  is  founded  on  sound  principles  of 
philosophy,  applicable  to  the  nature  of  the  human  species.  The 
term  of  solitary  confinement,  without  labour,  will  be  defined  in 
our  statute  books  for  specific  offences,  and  enter  into  the  sen- 
tence of  our  criminal  tribunals.  Wherever  it  has  been  tried,  it 
has  been  tried  with  success,  in  this  country.  No  time  should 
he  lost  in  giving  it  a  more  full,  ample,  and  satisfactory  experi- 
ment. "Man  is  a  social  being,"  says  Governor  Adair,  in  his 
last  speech  to  the  Legislature  of  Kentucky. — "  The  intercourse 


64 


of  his  fellow  man  is  essential  to  his  happiness,  and  necessary,  for 
the  expansion  of  those  noble  faculties,  which  distinguish  liim 
above  all  other  animals.  Unbroken  solitude  is  the  grave  of  his 
genius  and  his  joys.  Virtue  herself  wanders  with  melancholy 
aspect  in  the  regions  of  exile,  and  sinks,  with  despair- 
ing anguish,  amid  the  gloom  of  that  dungeon,  from  which 
she  is  never  to  emerge.  But  absolute  and  compulsory  sohtude, 
when  adopted  as  a  punishment,  and  inflicted  for  a  season  only, 
has  been  found  productive  of  the  most  beneficial  results.  It  is 
the  inquisition  of  the  soul,  and  the  tyrant  of  every  vice.  It 
may  be  regarded  as  scarcely  possible  that  the  guilty  prisoner 
can  long  inhabit  a  cell  where  darkness  and  silence  reign,  undis- 
turbed arbiters  of  his  doom,  without  some  relenting  of  purpose, 
some  real  penitence  of  heart.  The  moral  faculty  regains  its 
lost  dominion  in  his  breast,  and  its  solemn  responses  are  regard- 
ed as  oracular.  He  acquiesces  with  abated  resentment  in  the 
justice  of  the  sentence  by  which  he  suffers.  That  audacious 
spirit  of  resistance  to  the  established  order  of  society,  which 
drove  him  to  the  commission  of  every  outrage,  gives  place  to 
the  mortifying  sense  of  his  weakness  and  dependence  ;  and  he 
ardently  desires,  as  the  first  of  blessings,  a  return  to  that  very 
society  from  which  his  crimes  have  banished  him.  Hence  ori- 
ginates a  disposition  fitted  for  the  reception  of  moral  and  reli- 
gious instruction — a  conformity  to  the  requisition  of  his  present 
condition — a  spirit  of  active  industry,  emulation  and  amend- 
ment, the  means  of  present  favour,  and  future  restoration  ;  and 
all  the  benefits  which  are  consequent  on  regular  habits  and 
amended  morals."! 

The  other  kind  of  solitary  confinement,  might  be  designated 
for  the  most  hardened  felons,  after  they  had  passed  through  a 
sufficient  course  of  dicipline  in  solitude,  without  labour.  Their 
first  relief  should  be  the  application  of  their  time  to  that  sober 
industry,  which  they  had  discarded,  for  the  devices  of  guilt  and 
the  commission  of  crimes,  before  their  sentence  to  the  Peni- 


J  Vide  Gov.  Adair's  Speech  to  Leg.  of  Kentucky. 


55 


tentiary.  It ''ould  also  be  proper,  for  another  class  of  criminals, 
of  a  lower  grade,  who  might  be  doomed  to  solitary  imprison- 
ment and  hard  labour  in  the  first  instance.  It  is  believed,  by 
the  Committee,  that  the  punishment  would  be  found  severe, 
salutary  and  effective.  A  long  period  ot  solitary  confinement, 
without  any  labour  would  have  an  unfavorable  effect  on  the  fu- 
ture ability  of  the  convict  to  be  useful  in  his  peculiar  pursuits. 
His  mechanical  capacity  might  be  impaired  by  long  inertness. 
But  when  solitude  and  labour  could  be  combined,  consistently 
with  the  design  of  punishment,  the  execution  of  the  law  would 
not  give  cause  of  objection  to  those  who  look  at  our  State  Pri- 
sons, more  with  a  view  to  loss  and  gain,  in  point  of  revenue,  than 
to  any  thing  else.  It  is  contended  that  the  solitary  confinement 
here  spoken  of,  would  be  suitable  to  all  crimes  of  a  secon- 
dary degree,  and  that  it  would  tend  to  prevent  offences 
in  two  ways.  It  would  have  a  lasting  and  powerful  effect  on  the 
mind  of  the  offender  himself.  If  the  reform  of  convicts  is  with- 
in the  reach  of  any  human  laws,-:we  might  expect  it  here.  It 
would  also  prove  a  restraining  cause  in  the  evil  hour  of  temp- 
tation, when  its  bitter  consequences  were  recollected.  It  would 
also  accomplish  much,  by  the  means  of  example,  if  example 
can  ever  hold  the  reign  of  terror  over  the  vicious  and  profli- 
gate. 

Much  confidence  is  cherished,  that  if  these  two  grand  meth- 
ods of  punishment,  could  be  rigidly  enforced,  in  our  Penitentia- 
ries, and  no  other  adopted,  that  a  more  efficient  and  salutary 
criminal  code  would  be  exhibited,  in  the  Uuited  States,  than 
has  been  seen  in  any  other  country.  The  term  of  imprison- 
ment might  be  much  shorter  than  it  is  now.  Instead  of  ten 
and  fifteen  years,  it  could  be  reduced  to  less  than  half  the  num- 
ber and  so  throughout  the  whole  statute  book,  on  the  same  prin- 
ciple of  reduction. 

It  is  contended,  by  many,  that  solitary  confinement  is  too  se- 
rious a  punishment  for  our  fellow  beings ;  that  it  will  drive  them 
to  madness  and  mental  alienation,  or  send  them  rapidly  to  the 
grave.   We  are  happy  to  find  that  its  contemplation,  in  the 


56 


»iiiicl  of  a  vii'tuuu:j  and  reflecting  community,  is  aiicnHpd  wi  tli 
such  feelings  of  revolt :  for,  this  is  an  indication  of  its  sumniaiy 
and  salutary  effects,  on  the  most  guilty  and  knavish  of  our  race. 
They,  too,  will  catch  the  abhorrence,  and  feel  an  interest  to 
atoid  the  suffering  to  which  it  points.  We  are.  however,  incli- 
ned  to  think,  that  the  fatal  effects  of  solitude  and  confinement, 
are  exagerated.  We  do  not  believe  that  they  would  be  so  de- 
structive of  life  and  sanity,  as  it  is  imagined.  Men  have  often 
been  cast  into  the  deepest  and  the  darkest  dungjeons,  to  serve 
the  views  of  despots  and  the  policy  of  governments,  on  the 
other  continent,  and  existed  there,  for  years,  on  the  poorest  food, 
and  again  appeared  before  the  face  of  the  sun,  with  their  bleach- 
ed locks  and  sallow  countenances.  If,  however,  its  tendency  is 
so  overwhelming,  its  adoption  as  a  punishment  will  supply  a 
desideratum  in  the  American  community. 

But  we  cannot  expect  that  all  the  states  will  immediately  fol- 
low our  views.  Revenue,  and  not  exclusively  the  prevention 
of  crimes,  will  enter  into  their  public  policy.  We  regret  to 
say,  that  convicts  will  still  be  suffered  to  have  intercourse,  and 
to  mingle  in  common,  in  order  to  carry  on  particular  manufac- 
tories, and  to  prosecute  mechanical  pursuits,  which  demand 
strong  physical  power.  In  time  we  trust  that  a  wise  principle 
of  economy  will  be  cherished,  and  the  ultimate,  and  not  the 
direct  loss,  to  the  community,  by  a  method  of  punishment, 
that  defeats  its  own  object,  will  be  duly  borne  in  mind.  But 
while  the  suppression  of  all  intercourse  among  criminals  is 
neglected,  we  must  turn  our  attention  to  the  most  wise  means  of 
managing  our  Penitentiaries  with  this  defect.  This  brings  us 
to  consider  the  necessity  of  classification. 

If  the  state  governments  will  go  on,  shutting  up  some  three 
or  four  hundred  convicts  in  a  Penitentiary,  and  carry  on  manu- 
factories, and  a  course  of  business,  that  need  their  joint  labour, 
the  division  of  their  persons  into  classes  will  prevent  many  of 
the  evils  now  (lowing  from  their  promiscuous  and  indiscriminate 
intercourse.    Let  the  most  hardened  and  guilty  criminals  be 


kept  bv  themselves,  and  the  more  trivial  offenders  be  also  at- 
tached to  a  distinct  denomination.  Let  those  of  an  interme- 
diate grade,  in  guilt,  have  their  own  class  and  department. 
These  divisions  might  be  extended,  and  subdivisions  be  institu- 
ted, to  suit  the  age,  disposition,  obstinacy  or  penitence,  of  the 
felon.  But  we  shall  be  asked,  how  is  the  discrimination  to  be 
made  ?  Who  shall  fix  on  the  standard  by  which  a  division  into 
classes  shall  be  regulated  ?  And  we  would  ask,  in  return,  where 
is  the  radical  difficulty  in  distinguishing  the  character  of  con- 
victs in  a  Penitentiary  ?  In  the  first  place,  the  records  of  their 
eonviction,  afford  prima  facie  evidence  of  the  degree  of  turpi- 
tude of  which  they  have  been  guilty.  A  notorious  offender  will 
find  his  fame  precede  his  entrance  upon  his  new  life ;  nor  will 
men  remain  long  in  a  State  Prison,  without  betraying  their 
strong  propensities  and  ruling  passions  in  visible  indiscretions 
of  conduct.  A  sign  of  humility,  contrition  and  obedience,  will 
be  equally  visible.  Those  tu  whom  is  entrusted  the  govern- 
ment of  a  Penitentiary,  will  have  abundant  means  of  drawing 
correct  lines  of  separation,  between  the  vicious  and  the  super, 
latively  vicious.  Take  a  Penitentiary  containing  two  hundred 
tenants ;  divide  them  into  eight  classes,  and  let  each  class  be 
kept  unconnected  with  the  others  ;  let  all  the  classes  be  kept 
under  strict  regulations,  and  rigid  bye-laws,  and  as  few  words 
be  spoken  as  possible.  Several  beneficial  effects  must  result. 
The  work  of  contamination  would  be  arrested ;  the  distinction 
displayed  in  the  classification  would  shew,  that  even  in  a  State 
Prison,  virtue,  in  whatever  degree  it  existed,  was  esteemed 
above  moral  abandonment ;  and  men,  by  being  placed  in  small 
numbers,  would  reflect  more  on  their  individual  conditions. 
Instead  of  criminals  being  huddled  together,  in  one  rude  con- 
gregation, where  all  lines  and  contrasts  are  obliterated  and  de- 
stroyed, and  where  the  work  of  moral  disease  is  continually  ad- 
vancing, as  is  now  the  case  in  many  Penitentiaries,  we  should  at 
least  see  some  offenders  coming  out  from  among  the  multitude 
of  the  condemned,  redeemed  from  moral  apostacy. 
If  classification  is  not  adopted,  then,  as  a  choice  of  cxpe- 

8 


58 


dients,  the  Committee  would  advise  another  remedy  for  exist- 
ing evils. 

There  was  a  day  when  the  New- York  State  Prison  (2)  was  con- 
ducted with  a  strictness,  precision,  and  uniformity,  that  preclu- 
ded all  conversation,  and  all  the  evil  consequences  of  the  in- 
culcation of  corrupt  maxims,  profligate  notions,  the  communi- 
cation of  desperate  plans,  and  the  relation  of  profligate  adven- 
tures and  exploits.  The  utterance  of  a  syllable  was  punished 
with  confinement  In  a  solitary  cell.  The  restraint  on  the  crimi- 
nal was  severe,  and  it  rendered  his  confinement  odious,  and 
mentally  oppressive.  Aversion,  deep  and  settled  aversion,  for 
the  prison  walls  and  all  within  them,  was  contracted  ;  and  that 
aversion  stuck  a  root  in  the  soul  that  no  time  extirpated.  T  his 
community,  this  commonwealth  of  felons,  that  now  exists  in 
our  Penitentiaries,  must  be  broken  up.  To  this  the  Committee 
earnestly  call  the  atteniion  of  the  diflerent  states :  and  they  do 
ardently  hope,  that  when  convicie  are  suffered  to  labour  and 
spend  their  days  together,  in  large  numbers,  or  even  in  small 
ones,  that  all  conversation,  that  all  the  chances  of  evil  commu- 
nication, will  be  rigorously  prohibited,  by  the  enforcement  of 
strong  and  severe  bye-laws.    Great  good  will  follow. 

At  Auburn,  in  the  state  of  New -York,  the  classification  sys- 
tem is  now  in  operation,  on  principles  similar  to  those  here  laid 
down.  It  was  recently  commenced,  and  the  DiOst  beneficial  re- 
sults are  expected. 

We  would  next  call  the  attention  of  the  public  to  another 
evil,  that  requires  immediate  correction.  It  is  absolutely  es- 
sential to  any  thing  like  success  in  the  Penitentiary  System, 
that  criminals  should  sleep  in  solitary  cells,  even  when  they 
are  not  kept  in  solitude  during  the  day.  The  practice  of  turn- 
ing ten,  fifteen,  or  twenty,  into  the  same  sleeping  apartment,  has 
been  sufficiently  noticed.  Every  criminal  should  retire  at  sun- 
set to  his  own  domicil,  and  there  remain,  free  from  the  sound 
of  a  human  voice,  until  the  rising  of  the  next  morning's  sun. 

(S)  In  1800,  and  at  other  periods. 


59 


This  would  at  once  destroy  those  evil  and  dans^erous  conse- 
quences, that  have  been  brought  into  existence  and  nourished, 
during  ihose  hours  that  should  be  devoted  to  reflection  and  re- 
pose. It  would  leave  human  beings  in  solitude  and  darkness, 
to  turn  their  thoughts  on  the  causes  that  placed  them  in  their 
narrow  and  gloomy  mansions,  and  carry  back  their  memories 
to  that  early  dereliction  from  duty,  which  placed  them  at  the 
bar  of  a  criminal  court,  and  incurred  the  heavy  sentence  of  the 
law.  It  would  lead  them  to  contrast  innocence  with  guilt,  and 
to  appreciate  the  worth  and  blessings  of  moral  rectitude.  It 
would  tend  to  suggest  amendment,  and  transport  the  mind  to  a 
future  period  in  the  prisoner's  life,  when  better  days  and  hap- 
pier nights  would  again  pass  over  him  ;  when  he  would  be  re- 
stored to  the  comforts  of  social  life,  and  to  the  wide  and  alluring 
theatre  of  activity  and  enterprise.  It  would ,  in  fact,  render  the 
nights  of  the  prisoner  a  severe  scene  of  mental  tribulation,  if 
the  least  spark  of  feeling  and  contrition  was  left.  The  worst 
of  men  will  think  at  times,  and  the  hour  of  midnight,  is,  of  all 
hours,  the  most  horrid  to  a  guilty  conscience,  when  the  mind  is 
left  to  that  retrospect,  that  brings  agony  and  remorse.  Could 
all  our  Penitentiaries  be  constructed  like  those  mentioned  in 
Pennsylvania,  the  alteration  in  the  treatment  of  convicts,  here 
advocated,  would  be  secured  at  once,  with  many  other  benefits; 
with  the  prevention  of  many  horrid  evils  that  now  exist,  and  with 
the  promotion  of  individual  and  public  good.  The  Committee  will 
next  speak  of  the  erection  of  new  prisons  for  juvenile  offenders. 

The  poHcy  of  keeping  this  description  of  convicts  complete- 
ly separate  from  old  felons,  is  too  obvious  to  require  any  ar- 
guments. Nor  does  it  seem  wise  to  place  young  felons,  who 
have  been  guilty  of  but  one  offence,  and  who  can  be  reclaimed 
and  rendered  useful,  in  that  severe  state  of  punishment  that 
attends  solitary  confinement.  In  most  instances,  they  have  no 
inveterate  habits  to  extirpate.  Their  characters  are  not  form- 
ed- No  moral  standard  of  conduct  has  been  placed  before  their 
eyes.  No  faithful  parent  has  watched  over  them  and  restrained 
their  vicious  propensities.  Their  1  ives  exhibit  a  series  of  abera- 
tions  from  regularity — chain  of  accidents  that  has  rendered 


60 


them  the  Tictims  of  temptation,  and  the  sport  of  adversity. 
They  have  been  sent  from  place  to  place,  subsisted  by  preca- 
rious meanSj'or  been  left  to  combat  with  poverty,  want,  and  the 
inclemency  of  the  seasons,  by  the  exercise  of  their  own  inge- 
nuity. Every  thing  about  them  has  been  various  and  unsettled  ; 
and  in  the  unfortunate  hour  of  temptation,  while  under  th^ 
pressure  of  want,  or  when  seduced  into  the  giddy  vortex  of  de- 
praved passions,  they  have  offended  against  the  laws,  and  been 
sentenced  to  the  State  Prison.  There  are  exceptions  to  these 
remarks,  in  a  few  solitary  instances  of  premature  and  settled 
•baseness ;  but  this  view  has  a  very  extensive  application  to  the 
cases  of  juvenile  offenders  in  our  large  towns  and  cities.  In 
the  interior  it  is  very  rare  that  boys  are  indicted  for  crimes. 
What  then  is  the  duty  which  devolves  on  our  legislators  ?  To 
use  every  effort  to  bring  back  these  unhappy  youth  to  society. 
They  should  be  restored,  as  far  as  possible,  to  the  rights  forfeited 
by  an  early  departure  from  the  line  of  rectitude.  This  can 
never  be  done,  under  a  system  of  punishment,  that  is  suitable 
to  the  most  obdurate  and  abandoned  criminals.  The  human 
mind  has  its  seasons  and  stages,  when  specific  remedies  are, 
and  when  they  are  not,  applicable.  The  Committee  would 
therefore  recommend,  thai  prisons  be  erected  in  the  different 
states,  exclusively  for  juvenile  convicts.  In  the  larger  states, 
there  could  be  a  division  into  districts,  and  a  place  of  confine- 
ment erected  in  each.  In  Massachusetts  there  is  a  prison  for 
young  convicts  in  each  county. 

These  prisons,  the  Committee  conceive,  should  be  rather 
schools  for  instruction,  than  places  of  punishment,  like  our 
present  State  Prisons,  where  the  young  and  the  old  are  confined 
indiscriminately.  The  youth  confined  there  should  be  placed 
under  a  course  of  discipline,  severe  and  unchanging,  but  alike 
calculated  to  subdue  and  conciliate.  A  system  should  be 
adopted  that  would  prove  a  mental  and  moral  regimen,  if  we 
may  be  indulged  in  the  expression.  The  wretchedness  and 
misery  of  the  offender  should  not  be  the  object  of  the  punish- 
ment inflicted  ;  the  end  should  be  bis  reformation  and  future : 


61 


usefulness.  Two  objects  should  be  attended  to  :  first,  regular 
and  constant  employment  in  branches  of  industry,  that  would 
enable  the  convict  to  attain  the  future  means  of  livelihood  :  and, 
secondly,  instruction  in  the  elementary  branches  of  education, 
and  the  careful  inculcation  of  religious  and  moral  principles. 
The  latter  would  be  vitally  important. 

Most  of  the  young  offenders  in  the  different  State  Prisons,  so 
far  as  the  knowledge  of  the  Committee  extends,  have  no  trade 
or  mystery.  They  have  never  been  put  with  the  industrious  me- 
chanic, or  been  placed  to  labour  with  the  cultivators  of  the 
soil.  Their  lives  have  been  chequered  with  the  most  idle  ha- 
bits. Hence,  one  great  object  should  be,  to  give  them  a  set- 
tled occupation  for  life.  One  part  of  their  time  should  be 
devoted  to  those  mechanic  pursuits,  to  which  their  genius  may 
be  adapted.  Under  strict  and  rigid  regulation,  let  them  go  to 
their  daily  toils,  and  each  day  acquire  some  new  principles  of 
knowledge.  Emulation  should  be  excited  as  far  as  possible, 
and  extraordinary  exhibitions  of  skill,  or  great  and  successful 
efforts  in  industry,  be  rewarded  by  marks  that  would  call  forth 
an  ambition  for  excellence.  What  would  be  the  effect We 
should  see  a  little  society  of  boys,  growing  up  in  useful  em- 
ployments, imbibing  settled  and  lasting  habits  of  the  most  in- 
dustrious kind.  They  would  go  forth,  at  the  end  of  their  con- 
finement, with  a  capacity  to  obtain  an  honest  living — with  the 
means  of  acquiring  wealth  and  fortune.  Another  part  of  their 
time  should  be  spent  in  the  acquirement  of  elementary  educa- 
tion, in  all  the  branches  of  knowledge  requisite  for  the  ordinary 
transaction  of  business.  The  expense  of  giving  young  culprits 
this  advantage,  would  be  small,  and  its  consequences  of  the 
most  salutary  and  durable  nature.  The  force  of  education  is 
no  where  better  understood,  and  no  where  more  highly  appre- 
ciated, than  in  this  country.  Its  connection  with  the  duration 
and  prosperity  of  our  public  institutions,  and  its  importance  to 
the  peace  of  society,  and  the  security  of  individual  rights,  are 
daily  seen.  Why  then  neglect  to  give  instruction  where  it  is 
most  required — to  that  portion  of  the  rising  generation,  that 


62 


have  fallen  victims  to  early  guilt,  in  a  great  measure,  for  the 
want  of  it.  With  the  elementary  instruction  here  spoken  of, 
plain,  simple,  and  practical  moral  principles,  like  those  promul- 
gated by  our  illustrious  countryman,  Benjamin  Franklin,  should 
be  constantly  blended;  and  great  care  be  used  in  selectingteach- 
ers  and  superintendants,  who,  with  mild  manners,  humane  dis- 
positions, and  benevolent  spirits,  will  watch  over  their  charge 
with  fidelity  and  success.  If  such  a  policy  can  have  no  effect 
towards  reforming  our  juvenile  offenders,  then  we  may  despair 
of  effecting  anything,  over  which  we  can  pour  forth  our  con- 
gratulations. If  industry  and  education — if  strict,  wholesome, 
and  sound  moral  discipline — if  rendering  places  for  their  con- 
finement abhorrent  to  the  views,  feelings,  and  inclinations 
of  every  vicious  youth,  by  an  entire  new  life  within  their  boun- 
daries, equal  in  strictness  and  regularity  to  that  of  monastic  es- 
tablishments, cannot  produce  a  salutary  change,  then  we  may 
mourn  over  the  lot  of  our  race,  and  rest  under  the  conviction, 
that  there  are  cases  where  hope  has  neither  refuge  or  resting 
place.  (3) 

As  to  the  construction  of  these  prisons  for  juvenile  offenders, 
it  is  believed  that  they  should  sleep  in  separate  and  solitary 
cells,  and  that  during  the  day,  they  should  be  divided  into  class- 
es. Solitary  confinement  during  the  day  does  not  seem  to  be 
called  for,  in  the  case  of  these  culprits,  nor  would  it  be  consist- 
ent with  the  regulations  here  advocated  ;  but  the  necessity  of 
classification  is  obvious.  There  will  be  shades  of  guilt,  among 
young,  as  well  as  among  old  criminals ;  and  the  evils  of  conta- 
gious vice  appear  in  both  cases.  There  will  also  be  differen- 
ces in  dispositions,  capacity,  habits  and  age,  that  will  demand 
discrimination.  The  Committee  do  not  feel  themselves  called 
on  to  act  in  the  capacity  of  architects,  and  to  draw  plans 
for  edifices ;   they  are  called  on  to  make  suggestions,  as  to 


(3)  The  Committee  are  liappy  to  remark,  that  the  new  Penitentiary  erected  at 
Auburn,  in  the  state  of  JNew-Yoik.  has  one  wing  containing  separate  r.eWs,  cal- 
culated for  the  solitary  confinement  of  convicts  from  sun-set  to  sun-ri»e. 


63 


principles  and  their  application.  They  have  recently  perused 
a  small  pamphlet,  entitled  "  Description  of  a  design  for  a  Pen- 
itentiary for  six  hundred  juvenile  offenders,  as  recommended 
by  the  Society  for  the  improvement  of  Prison  Discipline  in 
London,"  (4)  from  which  they  take  the  following  extract  con- 
cerning classification  : — "  The  whole  number  of  juvenile  pri- 
soners, viz.  600,  are  divided,  according  to  this  design,  into  nine 
classes ;  and  such  is  the  construction  of  the  building  through- 
out, that  a  most  effectual  and  constant  separation  of  these  nine 
classes  can  be  preserved  at  all  times,  whatever  be  their  occupa- 
tions, whilst  all  of  them  are  going  through  their  regular,  and, 
generally  speaking,  the  same  discipline,  without  any  interrup- 
tion or  interference  with  each  other.  To  every  class  is  appro" 
priated  a  distinct  prison  establishment,  whilst  the  power  of  com- 
plete superintendance  is  placed  in  the  hands  of  the  governor. 

"  Every  class  has  a  separate  work  room,  about  ninety  feet  in 
length,  which  is  to  be  divided  off  at  the  lower  end  for  a  school 
room,  as  above  mentioned ;  a  dining  room  and  airing  room, 
with  a  covered  colonade,  in  case  of  rain  ;  a  set  of  shower 
baths,  washing  sinks,  &c. ;  a  separate  stair  case,  leading  to  the 
night  cells  ;  a  solitary  cell,  for  the  punishment  of  the  refractory 
of  the  class  ;  a  separate  compartment  in  the  chapel,  fitted  up 
with  benches ;  also  an  area  for  such  species  of  work  as  may 
best  be  carried  on  out  of  doors.  By  means  of  the  moveable 
doors  on  the  cell  galleries,  the  requisite  number  of  night  cells 
are  provided,  and  which  may  be  varied,  from  time  to  time,  ac- 
cording to  the  increase  or  diminution  of  prisoners ;  at  the  same 
time  giving  to  each  prisoner  a  separate  cell;  an  arrangement 
which  is  earnestly  recommended,  as  essential  to  the  health  and 
moral  welfare  of  prisoners. 

"  Such  is  the  nature  of  this  design,  that  it  would  be  by  no 
means  difficult  to  increase  the  present  number  of  classes  to  a 
very  considerable  extent ;  but  the  apparent  advantage,  in  this 
respect,  would  be  greatly  exceeded  by  the  loss  of  many  other 


(4)  Published  in  London,  1819. 


64 


essential  advantages.  It  has,  therefore,  not  been  made  an  ob- 
ject, in  the  preparation  of  this  design,  to  obtain  a  great,  but  a 
sufficient  degree  of  classification,  combined  with  the  most  ef- 
fectual and  invariable  separation  of  each  class,  and  at  the  same 
time,  to  provide  that  the  power  of  constant  and  complete  in- 
spection should  be  placed,  as  much  as  possible,  within  the  reach 
of  the  governor." 

It  will  be  said,  in  answer  to  all  this  plan  of  improvement, 
that  its  expenses  will  prove  an  invincible  obstacle  to  its  execu. 
tion.  Again  we  say,  what  is  the  object  of  Penal.Iaws  ?  Sup> 
pression  of  crime,  and  the  reform  of  criminals,  is  the  answer^ 
Where  then  is  the  fault  of  our  proposition  ?  If  a  better  one 
can  be  suggested,  we  shall  be  among  those  to  hail  its  annuncia- 
tion with  feelings  of  pleasure.  But  let  us  take  the  other  view, 
and  say  a  word  of  this  alledged  departure  from  economy. 

Which,  then,  is  the  cheapest,  to  take  five  hundred  juvenile 
offenders,  and  render  the  great  part  of  them  honest  and  useful' 
men,  by  a  new  course  of  punishment,  attended  with  no  extraor^ 
dinary  expense,  or  to  thrust  them  into  our  present  Penitentiarisg, 
with  a  moral  certainty  of  their  coming  out  with  new  vices  and 
with  fresh  desperation — with  the  moral  certainty  of  their  eithef 
being  in  prison,  as  a  public  burthen,  their  whole  lives,  or  of 
their  living,  when  out,  by  depredation  and  knavery  ?  If  reform- 
ed, their  industry  will  contribute  to  the  productive  energies  of 
the  community,  and  augment  its  aggregate  revenues ;  if  idle, 
their  labour  will  be  lost,  and  if  dishonest,  they  will  diminish  the 
avails  of  the  labour  of  others ;  to  say  nothing  of  their  example 
and  baneful  influence,  as  a  component  part  of  a  great  popula* 
tion.  Upon  every  rational  ground,  therefore,  the  apprehension 
of  additional  expenditures  affords  no  arguments  against  the  re>- 
form  here  pointed  out. 

We  fear  that  the  younger  states  will  not  immediately  embrace 
any  thing  like  the  plan  for  reform  here  recommended,  where 
they  have  recently  erected  Penitentiaries.  With  the  exception 
of  stales  along  the  sea-board,  these  juvenile  convicts  are  few  in 
number,  and  the  present  Penitentiaries  will  be  used  for  the  old 


65 


and  the  young.  Every  principle  of  reason  and  policy  dictate 
if  this  is  to  be  the  fact,  that  in  every  Penitentiary  in  the  United 
States,  the  young  offenders  should  be  kept  by  themselves,  and 
that  instruction  should  be  afforded  them.  It  is  no  less  humane 
than  wise,  to  give  them  those  steady  and  useful  employments, 
which  will  enable  them  to  live  honestly  upon  their  earnings,  af- 
ter their  term  of  service,  in  the  Penitentiary  expires. 

While,  in  this  country,  we  are  doing  much  to  prevent  crimes, 
by  the  growing  establishment  of  Free  schools  and  Sunday 
schools,  and  the  education  of  youth  is  an  object  of  vital  con- 
sideration, it  is  to  be  hoped,  that  juvenile  delinquents  will  nof 
escape  the  attention  of  the  wise,  the  good,  and  the  public  spir- 
ited. We  rejoice  that  in  England,  the  reformation  of  juvenile 
offenders  is  commanding  the  attention  of  men  who  combine 
station,  power  and  talents — who  stand  among  the  ornaments  of 
the  British  empire,  and>f  the  civilized  world.  Their  publica- 
tions, their  eloquence,  and  their  appeals  to  public  conviction, 
are  strong  and  spirited.  They  cross  the  ocean,  and  reach 
hearts  on  this  side  of  the  wide  waters,  which  beat  in  the  glori- 
ous cause  that  commands  their  zeal  and  exertions. 

If  we  would  render  our  Penitentiary  System  effectual,  we 
must  not  render  our  public  prisons  attractive  to  the  idle,  the 
needy,  and  the  profligate,  by  holding  out  the  idea  of  comfort 
or  sumptuousness.  Felons  must  not  eat  better  food,  find  their 
animal  spirits  better  sustained,  be  more  comfortably  clothed, 
and  dwell  in  more  commodious  apartments,  after  sentence  in  a 
court  of  justice,  than  they  ordinarily  enjoyed,  in  the  busy  world, 
before  its  freedom  was  taken  from  them.  Personal  liberty  is 
dear  to  mankind,  and  its  loss  is  repulsive  to  the  mind  ;  still  re- 
pugnance is  diminished,  when  something  like  an  equivalent  is 
found  for  its  privation,  in  an  improved  state  of  existence.  To 
men  destitute  of  shame,  and  dead  to  the  scorn  of  the  commu- 
nity, the  institution  of  a  comparison  between  the  mode  of  liv- 
ing in  one  place  and  another,  is  natural.  All  moral  contrasts  are 
forgotten.  What  shall  we  eat,  what  shall  we  drink,  what  shall 
we  wear,  how  shall  we  sleep,  and  what  company  shall  we  keep, 

8 


66 


are  subjects  that  occur,  when  the  thoughts  of  public  delinquents 
are  turned  to  a  confinement  in  the  Penitentiary  What  aspect 
then  should  our  Penitentiary  present  ?  A  place  where  every 
thing  conspires  to  punish  the  guilty.  There  should  be  nothing 
incident  to  it  that  is  either  pleasant  or  inviting.  It  must  be  ob- 
vious to  all  who  reflect,  that  it  would  be  an  easy  matter  to  give 
a  direct  encouragement  to  the  increase  of  crimes,  by  the  man- 
ner of  treating  convicts.  Let  them  set  down  at  the  richest,  and 
most  sumptuous  tables,  after  conviction  ;  let  them  be  regaled 
with  stimulating  liquors  ;  let  them  be  clothed  with  all  comfort, 
inhabit  spacious  and  airy  apartments,  and  live  with  fit  compan- 
ions for  the  wicked,  and  how  many  felons  would  literally  seek  a 
residence,  even  for  life,  in  a  State  prison  .''  Many  now  sent  there, 
it  is  true  would  not.  These  inducements  would  not  reach  their 
condition.  But  hundreds  and  thousands  there  are,  who  have  no 
settled  means  of  livelihood,  who  know  not  where  the  end  of  a 
year,  or  even  a  month,  may  find  them,  who  are  pressed  in  their 
resources  for  bare  being,  to  whom  the  considerations  here  sug- 
gested most  powerfully  appeal.  What  conclusion  does  this  re- 
flection sanction  .''  It  goes  to  convince  us,  that  so  far  as  crimin- 
als, of  the  most  depraved  character,  can  realise  more  of  the 
comforts  of  life  in  a  State  Prison,  than  out  of  it,  so  far  it  pre- 
sents allurements  to  their  eyes.  And  even  with  those  of  a  less 
abandoned  description,  a  confinement  in  a  Penitentiary  will 
have  less  terrors,  in  proportion  as  it  afibrds  more  sources  of  en- 
joyment. The  force  of  these  remarks  may  not  be  realized  by 
those  who  have  thought  on  the  Penitentiary  System  in  the  inte- 
rior of  the  Union  ;  but  to  those  who  have  visited  the  prisons 
along  the  Atlantic  coast,  and  seen  them  filled  and  crowded  with 
the  former  tenants  of  European  prisons,  and  old  offenders  who 
were  born  on  our  own  soil ;  who  see  them  containing  the  most 
needy,  desperate,  and  hardy  vagrants  and  outlaws  that  ever  in- 
fested society,  whose  bread  for  years,  has  been  obtained  by 
fraud  and  plunder,  they  will  not  be  thought  so  inapplicable  to 
ihe  grand  matter  of  our  inquiries  and  investigations. 
But  convicts  must  live,  will  be  the  answer  to  these  remarks. 


67 


True — convicts  must  live ;  and  convicts  who  are  doomed  to 
hard  labour  mOst  so  subsist,  that  they  can  find  their  strength, 
vigor  and  spirits  duly  sustained.  We  would  therefore  say,  that 
on  the  subject  of  diet,  two  principles  should  be  followed.  As  it 
is  hoped  and  trusted,  that  solitary  confinement  will  be  hereafter 
adopted  in  our  Criminal  Codes,  to  a  great  extent,  it  is  recom- 
mended that  in  such  cases,  moderate  and  low  diet  be  meteJ 
out  to  criminals.  While  an  attempt  is  made  to  inflict  mental 
discipline,  it  is  necessary  that  the  food  of  the  criminal  should 
not  be  of  that  description,  that  would  serve  to  counteract  the 
design.  We  do  not  say  that  bare  bread  and  water  should  al- 
ways be  resorted  to.  In  some  instances  it  will  be  found  requi- 
site ;  and  in  all  instances  of  complete  seclusion  without  labour, 
the  cheapest  diet  seems  the  most  proper.  On  the  other  hand, 
when  convicts  are  to  labour,  their  food,  in  the  opinion  of  the 
Committee,  should  be  nutricious,  simple  and  wholesome,  but  of 
the  coarsest  kind.  Nature  should  be  supported  by  sufficient  ali- 
ment ;  but  every  thing  like  good  living  should  be  discarded. 
All  spirituous  liquors,  of  every  description,  should  be  rigidly 
prohibited.  The  use  of  tobacco  as  it  exilerates  the  spirits 
seems  a  proper  object  of  exclusion ;  (5)  and  as  to  all  species  of 
food  and  drinks,  that  contain  any  stimulating  quality,  they  should 
never  be  used,  excepting  as  medicine.  It  is  unnecessary  to 
draw  up  a  bill  of  fare,  or  to  say,  in  this  place,  what  convicts 
should,  and  what  they  should  not  eat,  in  detail;  this  is  a  sub- 
ject easily  determined  by  judicious  men  who  may  be  called  up- 
on to  manage  our  different  Penitentiaries.  There  is  no  diffi- 
culty in  saying  what  diet  will  meet  the  policy  which  is  here  ad- 
vocated ;  and  in  closing  this  head,  the  Committee  do  say  that 
in  several  State  Prisons,  too  little  attention  has  been  paid  to  it. 
It  is  one  that  at  all  times  deserves  attention  and  vigilance. 

We  have  spoken  at  large  on  the  destructive  effects  of  the  too 
frequent  exercise  of  the  pardoning  power.  We  spoke  with  free- 
dom, but  without  allusion  to  persons  or  to  Chief  Magistrates. 


(3)  TUb  was  formerly  done  in  the  Philadelphia  Peniteotiary. 


86 


We  intended  that  our  strictures  should  be  abstract  and  general 
in  their  application.  In  bringing  up  the  subject  again,  to  sug- 
gest the  remedy,  our  task  is  easy  and  simple.  Let  no  convict 
be  pardoned.  Let  the  display  of  executive  clemency  be  so  rare 
and  seldom,  that  it  vrill  amount  to  a  virtual  denial  of  all  appli- 
cations for  its  interposition,  and  a  destruction  to  the  hopes  and 
expectations  of  all  convicts.  We  must  come  to  this,  or  find  all 
attempts  to  perfect  the  Penitentiary  System,  fruitless,  and  worse 
than  fruitless.  But  what  is  to  be  done .''  Two  things  are  to  be 
done,  if  we  mean  to  correct  the  evils  that  we  arraign.  In  the 
first  place,  persons  of  respectability,  influence  and  moral  worth, 
must  abstain  from  passing  off  shameful  impositions  upon  our 
Chief  Magistrates,  although  done  with  the  best  intentions,  and 
the  purest  motives.  The  practice  of  signing  petitions  for  par- 
dons, is  one  of  a  most  pernicious  and  dangerous  kind.  It  pal- 
sies our  penal  laws,  embarrases  the  Chief  Magistrate,  and,  in  ef- 
fect, promotes  the  increase  of  crime  and  guilt.  It  creates  un- 
just discriminations,  and  in  many  instances,  violates  the  moral 
obligations  of  citizens,  if  we  are  bound  by  moral  obligations,  lo 
do  that  which  will  promote  the  prosperity  and  happiness  of  the 
Commonwealth,  and  to  refrain  from  all  acts  that  produce  their 
dimunition.  To  see  the  most  distinguished  and  benevolent 
members  of  the  community,  heedlessly  putting  down  their 
names  to  an  application  for  the  pardon  of  a  convict,  who  has 
forfeited  every  claim  to  any  sympathy  or  humanity,  but  what 
the  stern  mandates  of  justice  permit  us  to  cherish  with  proprie- 
ty, presents  a  most  melancholy  comment  on  the  weakness  of  hu- 
man nature,  and  a  total  want  of  all  forecast  and  prudence.  The 
Chairman  of  this  Committee  has  seen  lists  of  names,  for  which 
the  utmost  respect  is  ever  cherished,  at  the  bottom  of  applica- 
tions, for  the  most  notorious  villains  that  ever  faced  a  court  of 
justice.  Gamblers,  and  the  keepers  of  gambling  houses,  where 
the  sons  of  our  first  citizens  and  the  inmates  of  our  most  respec- 
table families,  have  been  seduced,  fleeced  and  ruined — coimter- 
feiters,  swindlers,  murderers,  and  pirates—hostes  humani  generis, 
who  roam  and  plunder  over  the  seas,  can  strike  the  chord  of 


e9 


sjrmpatliy  and  send  forth  appeals  that  reach  the  bosoms  and 
co  ninand  the  interposition  of  persons,  who  should  shrink,  with 
the  feelings  of  abhorrence,  from  the  touch  of  their  petitions. 
We  call  the  attention  of  the  American  public  to  the  very  able 
letter  of  Mr.  Raymond,  contained  in  the  appendix  to  this  Re- 
port, in  which  a  striking  instance  will  be  found  to  corroborate 
the  correctness  of  these  strictures.  A  murder  was  perpetrated 
of  the  most  cold-blooded,  wanton  and  shocking  character,  on  a 
helpless  and  unoffending  man,  who  appealed  to  his  destroyers  as 
the  father  of  a  poor  little  family,  by  every  tie  that  can  dis- 
arm cruelty  and  vengeance  ;  and  yet  coolly,  deliberately,  and 
tranquilly,  he  was  shot  through  the  heart,  while  manacled  to  a 
tree  in  the  wilderness.  The  murderers  were  condemned  by  the 
laws  of  the  land.  A  petition  was  got  up  for  their  pardons,  and 
bnndreds  and  thousands  signed  it  of  the  principal  citizens  of  the 
union.  Not  only  men  but  women  signed  it  with  alacrity,  while 
the  wife  and  orphans  of  the  immolated  victim,  were  forgotten 
and  left  to  weep  over  the  untimely  fall  of  their  only  protector 
who  was  earning  bread  for  their  support,  when  his  blood  was 
sought  by  those  fiends  in  the  form  and  attire  of  men.  We  have 
no  right  to  look  for  firmness  on  the  part  of  a  Chief  Magistrate, 
and  for  his  prompt  rejection  of  petitions  for  pardons,  while  such 
reprehensible  practices  are  continually  indulged  by  men  whose 
cool  and  reflecting  moments  would  dictate  a  different  course  of 
conduct'  It  is  painful  to  see  wives  and  families  deprived  of  their 
bread,  by  the  commitment  of  a  felon  to  the  Penitentiary ;  it  is 
afflicting  to  see  an  aged  father  mourning  over  the  incarceration 
of  an  undutiful  and  profligate  son  ;  but  what  then  ?  Shall  the 
prison  doors  be  cast  open,  and  convicts  be  let  forth  to  commit 
depredations  anew,  and  our  Criminal  laws  be  rendered  a  mere 
mockery  ?  Many  of  the  applications  sent  to  the  Governor  of 
the  state  of  New-York,  contain  the  most  absurd  allegations, 
and  the  most  wilful  misrepresentations  ;  and  the  late  annual  Re- 
port from  the  Auburn  State  Prison  alleges,  that  "  the  business  of 
procuring  pardons  has  become  the  steady  and  profiitable  em- 
ployment of  many  individuals  who  attempt  the  grossest  imposi- 


70 


tions  upon  the  Governor."  (6)  When  the  obtaining  of  pardons 
becomes  a  profession  and  a  settled  pursuit,  and  those  who  en- 
gage in  the  vocation  are  favoured  with  the  names  of  those 
members  of  society  to  whom  we  look  to  give  a  tone  to  public 
sentiment,  the  prospect  of  reforming  criminals  is  in  truth  dark 
and  hopeless.  We  call  upon  men  in  power  and  authority — we 
call  upon  the  friends  to  the  peace  and  the  order  of  society — we 
call  upon  the  friends  of  sound  laws,  and  upon  the  friends  to  the 
rigorous  and  undeviating  execution  of  sound  laws,  to  raise  the 
loud  voice  of  reproof  against  the  practice  of  embarrassing  the 
Chief  Magistrates  of  our  states,  with  petitions  for  pardons.  And 
we  do  also  call  upon  the  members  of  the  Bar  to  refrain  from 
acting  in  their  legal  capacity  to  procure  the  liberation  of  felons 
who  have  been  justly  condemned  for  their  transgressions.  (7) 

The  Committee  also  hope  that  those  who  are  entrusted  with 
the  pardoning  power  will  feel  the  importance  of  exercising  it  but 
seldom,  and  never  but  in  extreme  cases.  If  those  in  the  com- 
munity who  should  strengthen  the  arm  of  justice  and  render  the 
laws  sacred  and  certain,  will  send  up  their  petitions  without  rea- 
son or  consideration ;  if  women  and  children  are  presented  as 
instruments  to  obtain  the  relaxation  of  Penal  statutes ;  it  is  to  be 
hoped,  that  there  will  be  a  firmness  and  decision  in  the  breast 
of  the  Chief  Magistrates  to  enforce  the  uniform  and  rigorous 
operation  of  the  laws,  as  the  only  sure  means  of  protecting  the 
rights  of  individuals,  and  guarding  the  peace  and  safety  of  the 
great  body  of  the  people,  in  their  aggregate  capacity.  But  we 
are  told,  and  told  truly,  that  there  is  not  room  in  many  of  the 
Penitentiaries,  to  contain  all  the  convicts,  and  that  pardons  are 
granted  of  necessity.  This  we  know  has  been  the  case  with  our 
own  State  Prison,  both  under  the  administration  of  the  late,  and 
the  present  Governor.  But  whose  fault  is  this .''  Not  the  fault 
of  the  Chief  Magistrate.    It  is  the  duty  of  every  Legislature  to 

(6)  See  Report  of  Inspectors  to  Legisla.  Jan.  U,  1822. 

(7)  Sir  Edward  Coke  pointed  out  the  cv'.l  tendency  of  granting  frequent  par- 
dons in  the  reign  of  Queen  Elizabst'j. 


71 


see  that  due  means  are  afforded  to  enforce  the  laws  If  more 
room  is  wanted  for  convicts,  more  must  be  provided.  Let  our 
Chief  Magistrates,  when  necessary,  call  the  attention  of  the 
Legislature  to  this  point,  and  then  let  them  stand  by,  for  justice 
to  take  her  course.  This  would  produce  a  better  remedy,  than 
the  incessant  granting  of  pardons.  To  conclude  on  this  sub- 
ject, the  Committee  are  cheered  by  the  firm  conviction,  that  a 
feeling  is  daily  and  rapidly  growing  up  in  the  different  states  of 
the  Union,  that  will  ere  long,  render  the  frequent  interposition 
of  pardons,  an  object  of  public  reprehension,  and  popular  re- 
proach- This  sentiment  is  more  and  more  visible  in  the  prints 
and  papers  that  traverse  the  nation.  Certainty  in  the  execution 
of  Penal  laws  will  be  demanded  on  principles  of  self-preserva- 
tion. 

The  judicious  selection  of  persons  to  have  the  control,  go- 
vernment, and  administration  of  our  Penitentiary  System,  is  an 
object  of  the  first  importance,  as  we  look  to  its  improvement  and 
perfection.  In  the  enjoinment  of  this  requisition,  we  mean  to 
include  agents,  keepers,  directors,  governors,  inspectors  or  man- 
agers, and  all  other  officers  of  whatever  name,  who  may  be  ap- 
pointed to  exercise  discretionary  power  in  and  over  State  Pri- 
sons. Those  who  are  included  in  this  enumeration,  may  be 
properly  divided  into  two  classes — those  who  administer  the 
internal  police  of  Penitentiaries,  and  those  who  have  charge  oi' 
their  general  superintendance.  The  person  or  persons  who 
have  the  immediate  and  direct  management  of  convicts  in  a 
State  Prison,  have  a  trust  confided  to  them  of  a  most  delicate 
and  difficult  nature.  They  are  called  upon  to  deal  with  cha- 
racters of  various  descriptions,  whose  dispositions  are  different, 
and  whose  passions  exhibit  all  the  shades  of  turpitude  and 
desperation.  This  is  more  particularly  so,  in  the  present  state 
of  our  Penitentiaries,  where  a  large  number  of  convicts  are 
placed  together  ;  where  bye-laws  and  regulations  must  be  made 
to  govern  their  intercourse,  and  where  a  kind  of  special  cogni- 
zance is  had  over  the  actions  of  each  individual.  Was  each 
criminal  kept  in  ^  solitary  cell,  by  day  and  by  night,  fewer  difijr 


cullies  would  be  apparent ;  but,  under  the  present  con  dition  of 
things,  if  we  look  to  the  amendment  of  convicts,  or  even  if  we 
pretend  to  keep  them  from  becoming  more  depraved  and  dan- 
gerous, much  depends  on  the  character  and  qualifications  of 
the  person  who  holds  immediate  government  over  them.  We 
conceive  that  he  should  be  a  man  of  mild  and  uniform  dis- 
position, of  benevolent  feelings,  possessing  courage,  firmness 
and  decision  of  character ;   experience  in  the  walks  of  life,  a 
knowledge  of  human  nature,  and  a  capacity  to  discern  the  lead- 
ing passions  of  individuals,  and  all  their  weak  points,  seem 
requisite  qualities.    Individuals  of  this  description  can  always 
he  found,  if  adequate  inducements  are  held  forth  to  engage 
them  ;  and  when  once  obtained,  they  would  cherish  a  deep  and 
lively  interest  in  the  success  of  their  efforts  in  the  path  of  duty. 
Men  who  seek  the  office  of  agent  or  keeper,  in  our  State  Pri- 
sons, as  a  station  of  profit,  should  not  be  heard  in  their  applica* 
tion.    Party  views  and  prejudices  should  not  produce  the  selec- 
tion of  one  and  the  removal  of  another;   and  when  a  sound 
choice  has  once  been  made,  a  change  should  be  viewed  as  a 
calamity.    If  the  human  character  ever  can  be  reformed  by  the 
use  of  reason,  the  inculcation  of  moral  thoughts  and  moral  prin- 
ciples, and  the  application  of  wholesome  mental  discipline  ;  if 
the  reprobate  can  ever  be  called  back  to  the  ways  of  honesty 
or  reclaimed  from  his  vices,  the  Penitentiaries  of  this  country 
open  a  wide  and  fertile  field  to  the  zeal  and  patience  of  the 
philanthropist.    Much  can  be  done.    Human  nature,  in  its  very 
worst  state,  can  be  wrought  upon  with  success.    The  history  of 
Mrs.  Frey's  exertions  in  New-GJate,  affords  a  most  gratifying 
comment  on  these  remarks.    She  has  entered  the  prison  walls 
like  a  ministering  angel  of  truth,  peace  and  mercy,  and  guilt, 
in  the  most  awful  and  repulsive  form,  has  relinquished  a  domin- 
ion over  its  victims. 

As  to  the  selection  of  inspectors,  superintendants,  directors 
or  governors,  it  greatly  involves  the  prosperity  of  the  system, 
and  we  can  never  look  for  its  success  unless  care  and  judgment 
are  exercised  on  this  point.    We  must  rise  above  the  sphere  of 


78 


party  passions  and  favouritism,  and  look  abroad  in  the  commu- 
nity, with  a  steady  and  dispassionate  eye,  for  men  who  will  watch 
o*rer  our  Penitentiary  policy  as  an  important  national  experi- 
ment, involving  a  great  portion  of  national  happiness,  and  as 
one  reacbing  the  most  intricate  relations  of  society ;  for  men, 
too,  who  will  preside  over  it  with  a  capacity  that  can  discern  de- 
fects, and  apply  the  ready  hand  of  correction.  Confident  we 
ara,  that  the  state  governments  or  state  executives  can  find  men 
oi'  public  spirit,  and  of  competent  qualifications,  to  discharge 
;his  trust  with  fidelity.  When  once  selected,  permanency  in 
the  tenure  of  their  appointment  is  absolutely  essential  to  the 
faithful  exercise  of  their  functions.  Time  and  observation  are 
necessary  to  obtain  a  sufficient  knowledge  to  enable  men  to  act 
with  due  discretion  and  effect  in  the  management  of  a  State 
Prison ;  and  when  obtained,  all  the  benefits  to  result  from  it 
are  destroyed  by  ejection  from  office.  Many  of  the  State  Pri- 
son cudfS  and  bye-lavrs,  at  this  time,  want  amendment,  and  it 
requir-s  talent,  patriotism,  ardour  and  industry,  to  make  the 
reqiired  corrections.  With  men  of  prudence  and  capacity  ip 
bisiness,  we  should  unite  others  of  a  higher  order,  in  point  of 
ability,  if  we  would  constitute  boards  of  inspection  suitable  to 
the  ends  which  we  have  in  view.  We  have  said  so  much  on 
this  head,  in  another  place,  that  further  remark  seems  unixe- 
cessary. 

When  a  convict  is  sentenced  to  hard  labour,  the  spirit  and  let- 
ter of  the  law  should  be  well  observed.  He  should  be  put  to 
work,  and  kept  to  work,  in  the  the  true  sense  and  meaning  of 
the  words  hard  labour.  (8)  It  is  not  contended  that  tasks  should 
be  cruel  and  tyrannical ;  but  any  relaxation  in  the  requisition  of 
the  law,  any  favour  shown  to  one  individual,  that  is  not  evinced 
to  another,  and  in  fact  any  thing  like  favour  in  any  case  is  hos- 
tile to  the  System  of  punishraent  whose  perfection  is  now 
sought.  If  one  convict  is  to  be  permitted  to  sweep  the  rooms 
of  the  prison,  another  to  clean  the  furniture  and  utensils,  another 
to  keep  the  yard  in  proper  order,    a  substitute  for  haxd  labour. 


(8)  Vide  Mr.  Hopkiason's  letter,  App. 

10 


74 


undue  and  improper  partiality  is  shown,  and  an  authority  and 
discretion  are  exercised  that  the  laws  never  intended.  The  cer- 
tainty of  punishment  is  destroyed,  and  pernicious  contrasts  are 
exhibited.  Idleness  should  be  guarded  against,  with  the  utniost 
scrutiny,  unless  solitude  without  labour,  is  the  sentence  of  the 
criminal.  To  permit  convicts  to  pass  through  any  portion  of 
their  term  in  the  State  Prison  in  indolence,  when  it  was  intend- 
ed by  legislatures  and  courts  of  justice,  as  well  as  expected  by 
the  prisoners  themselves,  that  constant  and  rigid  industry  shoukl 
be  their  daily  lot,  is  tolerating  an  abuse  of  a  very  mischievous 
kind.  The  performance  of  hard  labour,  is  intended,  by  out' 
penal  statutes,  as  a  part  of  the  punishment  of  the  convict.  His 
exemption  from  this,  in  any  degree,  impairs  the  effect  of  the 
punishment.  It  is  said,  that  in  some  of  the  State  Prisons,  the 
labour  of  criminals  brings  no  returns  ;  that  there  is  no  market 
for  the  manufactures  which  come  from  their  hands.  No  facts 
of  this  nature  are  before  the  Committee  ;  and  if  there  were  any, 
we  should  say,  that  it  would  be  far  better,  even  to  realise  nuhing 
more  than  the  mere  price  of  the  stock  worked  up,  than  to  {.er- 
mit  idleness  to  reign  within  our  State  Prison  walls,  when  haH 
labour  is  enjoined.  We  believe  that  the  products  of  labour,  per- 
formed in  our  Penitentiaries,  can  always  be  sold  for  something 
9.nd  it  is  far  more  politic  to  dispense  with  strict  calculations  as 
to  profit,  than  to  permit  relaxation  in  the  punishment  of  public 
offenders.  Agents,  keepers,  and  all  officers,  who  have  the  con- 
trol and  management  of  convicts,  should,  in  the  view  of  the 
Committee,  be  wholly  prevented  from  showing  any  other  fa- 
vours or  discrimination  than  the  State  Prison  codes  and  bye- 
laws  permit. 

A  disregard  for  personal  cleanliness  leads  to  the  relaxation  of 
moral  principles,  and  renders  the  profligate  more  profligate,  and 
the  base  more  base.  No  public  prison  can  be  a  place  of  reform, 
if  a  disregard  to  neatness  is  tolerated.  The  benevolent  Howard, 
often  had  occasion,  while  visiting  the  dungeons  of  Europe,  to 
raise  his  remonstrance  on  this  subject.  The  Committee  recom- 
mend, that  the  utmost  care  be  taken,  to  render  our  Penitenti- 


aries  clean  and  wholesome,  in  every  particular.  The  convicts 
should  be  compelled  to  keep  their  persons  entirely  free  fjrocn 
every  neglect,  and  every  species  of  uucleanhness.  A  habit  of 
neatness  would  soon  become  pleasant  and  grateful  to  the  feel- 
ings of  the  criminal ;  and  if  he  had  been  once  found  among 
(hose  collections  of  the  wicked,  where  a  disregard  to  appear- 
ance and  decorum  was  apparent,  he  would  reflect  on  the  pollu- 
tion of  such  associations,  with  disgust. 

We  again  repeat  the  remark,  that  revenue  must  be  a  secon- 
dat)' consideration  with  those  who  administer  the  Penitentiary 
System,  if  its  designs  are  ever  to  be  accomplished.  We  put 
convicts  in  the  State  Prisons  to  be  punished  and  reclaimed,  not 
to  earn  money  for  the  people.  Punishment  and  its  effects  are 
never  to  be  lost  sight  of.  If  the  first  object  is  the  great  produc- 
tiveness of  the  labour  of  convicts,  let  it  be  so  understood.  We 
must  then  change  our  whole  System  to  meet  this  end  ;  and  in- 
stead of  confining  prisoners  within  the  walls  of  a  State  Prison 
during  the  day,  it  might  be  more  profitable  to  put  chains  and 
weights  on  their  feet,  and  let  out  their  services  in  various  ways. 
If  the  prevention  of  crimes  is  the  design,  let  this  also  be  sub- 
stantively and  primarily  considered  in  all  cases,  and  every  thing 
be  renounced  that  militates  against  it.  The  Committee,  there- 
forcy  enjoin  what  common  sense,  and  the  most  ordinary  pru- 
dence dictates ;  let  the  first  great  question  be,  how  can  the 
Penitentiary  System  be  rendered  the  most  effective  in  dimin- 
ishing crimes,  and  in  reforming  convicts The  moment  this 
inquiry  is  forgotten,  sound  policy  is  contravened,  and  we  give 
up  the  System  to  ruin  and  disappointment.  It  cannot  be  oth- 
erwise. Better  that  all  the  criminals  in  the  United  States  should 
never  earn  a  farthing,  than  to  bear  the  present  results  of  our  de- 
fective and  pernicious  treatment.  If  it  becomes  necessary  to 
keep  each  transgressor  in  perpetual  solitude,  it  must  be  done. 
We  must  go  through  with  the  object  of  our  Criminal  Codes,  or 
renounce  them  altogether,  and  begin  again  with  the  enactment 
of  penal  laws.    Half-way  laws,  partial  punishment,  and  legisla- 


7fi 

y*TB  Tpcaknfess  and  vacillation,  will  result  in  nothing  but  disaster, 
discouragement,  and  vice. 

Here  the  Committee  terminate  the  second  division  of  their 
Report— the  suggestion  of  remedies  to  meet  existing  evils  in  the 
Penitentiary  System,  and  pass  to  the  third  general  lic»d  :  the 
substitute  to  which  the  diflerent  states  in  the  Union  must  resort, 
provided  this  System  is  to  be  abandoned. 

Let  it  be  admitted,  that  the  Penitentiary  System  in  this  coun- 
try is  beyond  the  reach  of  those  radical  improvements  that 
would  render  it  adequate  to  its  original  ends.  Let  us  admit  that 
the  nation  should  rise  up  at  once,  and  resolve  on  its  immediate 
destruction.  Let  us  repeal  our  present  Criminal  Codes,  in  the 
different  states,  and  discard  their  mild  features.  To  what  must 
we  resort?  We  shall  have  crimes,  and  we  must  have  punishments. 
Transportation,  corporal  punishment,  and  death,  have  been  sug- 
gested as  a  substitute  for  our  present  punishments.  They  have 
found  a  vindication  in  some  of  the  public  prints  of  the  day,  more 
especially  that  of  transportation,  and  men  of  influence  in  the 
community,  and  those  well  versed  in  the  laws  of  their  countiy, 
often  mention  the  latter  as  the  inevitable  resort  of  no  distant 
day. 

Let  us  examine  the  expediency  of  resorting  to  transportation, 
corporal  punishment,  and  death,  to  prevent  crimes.  And  as  to 
the  former,  its  impracticability  is  the  first  objection  that  refutes 
every  ingenious  argument  in  its  favour.  To  what  place  will  the 
United  States  send  their  felons?  Where  are  our  colonial — 
where  our  foreign  establishments?  Wherever  our  government 
extends  and  wherever  it  has  force  and  authority,  there  the 
rights  and  immunities  of  American  citizens  may  be  enjoyed. 
We  know  of  no  inferior  appendages,  within  the  circle  wbieh  it 
embraces.  How  then  are  we  to  dispose  of  convicts,  if  transpor- 
tation is  deemed  expedient?  We  must  either  obtain  some  dis*- 
tant  settlement,  perhaps  in  the  bosom  of  the  Pacific  ocean,  or 
we  must  take  some  spot  within  our  national  dominions.  As  to 
•procuring  a  foreign  settlement,  but  two  methods  offer,  by  which 
the  object  could  be  effected ;  we  must  resort  to  purchase  or  to 


77 


conquest.    The  constitution  knows  of  no  such  policy  as  the  ap- 
propriation of  money,  by  the  Congress  of  the  United  States,  to 
purchase  a  territory,  that  is  not  to  be  governed  by  that  consti- 
tution— that  is  not  to  be  a  part  of  the  American  confederacy. 
The  purchase  of  a  foreign  station  is  out  of  the  question.  Shall 
we  then  proceed  by  conquest Shall  we  send  our  navy  to  tak« 
possession  of  an  Island  in  the  western  seas     Foreign  conquests, 
for  any  purpose,  are  hostile  to  the  principles  of  our  national  policy. 
If  one  can  be  authorised,  so  can  another,  and  we  may  go  on  till 
we  have  a  chain  of  remote  settlements.  By  what  laws  would  they 
be  governed  .''    Not  by  the  American  constitution  ;  not  by  the 
laws  that  extend  their  empire  from  the  Floridas  to  the  borders  of 
the  Canadas.    A  local  government  must  be  organized,  and  prin- 
ciples, foreign  to  our  constitution,  admitted.    The  expense  of 
acquiring  such  a  territory,  and  the  expense  of  retaining  it ;  in- 
dependent of  the  disbursements  for  transporting  criminals,  are 
entitled  to  some  consideration,  if  all  other  objections  could  be 
removed.    But  when  we  take  into  view  the  great  expenditures 
that  would  continually  be  demanded,  to  send  out  convicts,  and 
to  keep  tbem  within  the  limits  of  their  exile,  we  see  new  im- 
pediments.   We  must  have  military  establishments,  a  guard,  a 
foreign  garrison,  to  watch  over  the  rising  destinies  of  our  hope- 
ful settlement.    A  few  voyages  round  Cape  Horn  to  carry  forth 
the  tenants  of  our  prisons  on  their  conviction,  and  a  few  an- 
nual appropriations  to  support  a  few  troops  to  keep  them  in 
subordination,  and  to  prevent  their  speedy  return,  would  show 
an  expenditure  more  than  sufficient  to  erect  separate  cells,  and 
support  in  solitude,  every  convict  in  the  United  States.  The 
expenses  for  transporting  convicts  to  Botany  Bay,  during  the 
last  twenty  years,  has  cost  Great  Britain  an  enormous  sum. 
And  by  whom  would  our  criminals  be  transported  ?   By  the 
nation,  or  by  the  different  states  ?    If  by  the  nation,  then  the 
nation  is  to  execute  state  laws,  over  which  the  national  govern- 
ment has  no  control — laws  different  in  their  provisions,  in  their 
enactments,  in  their  severity,  in  their  tendency  to  increase  or 
prevent  crimes.    As  to  the  states'  carrying  away  their  own  con- 


78 


victs,  it  would  involve  too  many  objections  to  permit  its  inves- 
tigation. They  would  avoid  the  indicting,  arraigning  and  con- 
victing of  felons  from  the  apprehension  of  heavy  pecuniary 
burthens.  Transient  felons,  fleeing  from  one  state  to  another, 
would  escape.  Massachusetts  or  New- York  would  not  be  anx- 
ious to  punish  the  fugitives  from  Maryland  or  Georgia.  We 
have  mentioned  a  settlement  some  where  in  the  Pacific  ocean, 
because  we  can  perceive  no  where  else  to  which  our  views  can 
be  directed,  with  any  thing  like  propriety. 

It  has  been  asserted  by  many,  that  a  settlement  at  the  mouth 
of  the  Columbia  river,  on  the  Pacific  coast,  might  be  establish- 
ed and  sustained,  for  our  culprits.  We  take  it  for  granted  that 
no  one  would  seriously  think  of  transporting  convicts  to  this  re 
mote  region  by  land  across  the  western  mountains,  the  extend- 
ed spine  of  the  Andes,  several  thousand  miles.  The  disposal  of 
one  offender,  in  this  manner,  would  cost  more  than  the  support 
of  ten  convicts  in  the  State  Prison,  provided  their  periods  of 
punishment  were  the  same.  If  the  journey  by  land  is  renoun- 
ced, then  the  doubling  of  Cape  Horn,  and  all  the  unavoidable 
expenditures  of  transportation,  and  of  maintaining  a  small  mil- 
itary force  before  pointed  out,  occur  to  the  mind.  But  another 
consideration  arises  on  this  subject.  Suppose  we  sentence  our 
criminals  to  a  residence  at  the  mouth  of  Columbia  river,  what 
would  be  the  moral  consequences  Is  the  banishment  to  be 
perpetual  or  temporary If  perpetual,  then  we  confound  all  the 
graduations  of  a  penal  code  to  the  magnitude  and  depravity  of  the 
offence.  We  must  either  adopt  this  kind  of  punishment  in  a 
very  limited  degree,  or  make  great  and  small  crimes  of  equal 
criuiiuality.  If  the  term  of  residence  beyond  the  mountains, 
should  be  limited  to  five,  ten  or  fifteen  years,  we  have  no  idea 
that  hardy  and  resolute  offenders  would  change  in  character  and 
morals,  by  the  execution  of  the  law  upon  them.  We  might  ex- 
pect to  see  them  return  to  the  society  which  they  left,  with  new 
enterprise  and  new  hardihood.  What  is  the  object  of  punish- 
ment at  all.''  The  prevention  of  crimes  by  the  example,  and 
reformation  of  the  convict — by  the  spectacle  which  is  presented 


79 


to  others.    Would  transportation  to  the  mouth  of  Columbia  ri- 
ver, have  this  effect  ?    What  hardened  outlaw,  would  dread  the 
novel  and  variagated  scenes  of  a  new  country,  where  the  eye  is 
regaled  with  perpetual  objects  of  wonder  and  delight  ?  What 
felon,  from  the  prisons  of  England,  Ireland,  France,  Germany, 
Italy,  or  Spain,  would  find  the  bitterness  of  repentance  in  such 
a  punishment  ?    VVho  of  our  daring  and  active  countrymen, 
would  find  their  spirits  broken  down,  and  their  moral  depravity 
eradicated  by  such  a  destiny?    They  would  consider  it  as  an 
alluring  excursion,  and  scarcely  count  the  number  of  suns  that 
should  rise  and  set  before  their  return.    How  far  a  collection 
of  felons  at  this  place,  might  hereafter  annoy  our  frontier  settle- 
ments, as  they  stretch  along  the  receding  shades  of  the  wilder- 
demess,  beyond  the  Mississippi;  how  far  "they  might  break 
away  from  tl^e  location  assigned  them  by  law,  and  mingle  with 
hostile  tribes  of  savages,  and  hereafter  diffuse  depredations 
along  the  chain  of  our  frontier  settlements,  it  is  not  necessary 
to  inquire.    The  whole  plan  of  transporting  criminals  from  the 
different  states,  appears  to  the  Committee,  to  be  visionary  and 
romantic.    It  has  been  noticed  with  some  attention  because  it 
is  always  wise  to  suppress  wild  and  fanciful  theories,  in  their 
primeval  state,  before  ardent  and  misguided  votaries,  adopt  and 
defend  them,  in  the  place  of  systems  that  merit  vindication. 
The  United  States  can  never  resort  to  the  transportation  of 
convicts,  to  any  distant  spot,  beyond  the  jurisdiction  of  muni- 
cipal authorities,  while  the  present  form  of  government  remains, 
and  the  people  cherish  their  existing  moral  and  civil  institu- 
tions. 

England  transports  convicts  to  Botany  Bay.  Her  limited  em- 
pire, her  crowded  population,  her  multitude  of  capital  offences, 
her  diversity  of  crime  from  her  complex  relations  of  society, 
may  render  this  choice  of  evils  necessary.  Yet,  if  we  may  be- 
lieve the  declaration  of  English  statesmen  on  the  floor  of  Par- 
liament, the  terror  of  this  punishment  is  little  felt.  Lord  Sid- 
mouth  avered  in  the  House  of  Peers  some  few  years  ago,  that 
*'  it  was  notorious  that  the  dread  of  transportation,  had  almost 


80 


subsided,  and  perhaps  had  been  succeeded  by  a  desire  to  emi- 
grate to  New  South  Wales."  (9)  In  a  late  debate  in  the  Bri- 
tish Parliament,  Mr.  Buxton  declared,  "  that  he  should  be  guil- 
ty of  insincerity,  if  he  were  to  contend  that  transportation  were 
any  punishment  at  all."  (10)  The  expenditures  of  this  kind  of 
punishment  have  also  been  enormous.  During  twenty  years 
past,  it  has  not  cost  the  British  government  much  short  of 
4^20,000,000  to  send  her  criminals  to  port  Jackson.  (11)  Thi^ 
evidence  should,  at  least,  warn  the  American  people  to  be  cau-> 
tious  in  advocating  a  remedy  for  crimes  that  has  been  found 
ineffectual  in  a  neighboring  empire,  after  full  trial.  (12) 

We  are  sorry  to  find  any  advocates  in  this  country,  for  those 
corporal  punishments  that  seem  alone  congenial  to  the  temper 
of  despotic  or  barbarous  ages.    We  cannot  withhold  our  ex-»  , 
pression  of  regret,  that  one  of  the  moat  rising  and  flourishing  ,1 
members  of  the  confederacy,  where  free  and  enlightened  prinT. 
ciples  are  cherished  with  tenacity,  should  have  recently  disj,  ;  | 
played,  through  some  of  her  most  distinguished  legislators,  &  ;ij 
disposition  to  adopt  penal  laws,  long  since  denounced  In  the  n{ 
United  States,  as  disgraceful  and  inhuman,  and  as  ineffectual'  ti 
to  prevent  crimes.  (13)    Previous  to  that  revolution  whici}  v 
gave  birth  to  our  present  system  of  government,  corporal  paa^ 
ishments  were  common.    They  even  prevailed  to  a  great  ex- 
tent, after  the  colonial  laws  ceased  to  exist.    Cropping  the  ears, 
branding  the  forehead,  burning  the  hand,  the  public  infliction 
of  stripes,  and  scourging,  and  exposure  in  the  pillory  were  fre- 
quent.   They  were  rejected  for  milder  modes  of  punishment, 
as  criminal  jurisprudence  attracted  the  attention  of  our  legisla- 

(9)  Speech  io  Hoase  of  Peers,  June  3d,  1813. 

(10)  Mr.  Bennet's  speech  in  House  of  Commons,  1818. 

(11)  Debate  in  British  Parliament,  May,  1821. 

(12)  Mr.  Roscoe,  ia  speaking  of  transportation,  quotes  the  following  wordb 
from  Cicero :  Exiliumi  non  supplieium  est,  sed  perfugium  protusque  supplicii. 
Cic.  pro  Coecin. 

(13)  Vide  late  debate  ia  tke  kgislature  of  Ohio,  on  the  Penitentiary  of  that 
.state. 


81 


tures.  Confinement  to  hard  labour  in  our  Penitentiaries  was 
substituted  ;  and  now,  before  the  virtues  and  eflScacy  of  this 
substitute  have  been  ascertained,  by  a  full  and  fair  test,  there  is 
a  doctrine  in  the  land,  that  it  is  politic  to  return  to  the  penal 
statutes,  that  were  recently  repealed,  as  savage  and  obnoxious. 
And  why  take  this  retrogade  step  ?  Can  it  be  proved,  to  the 
satisfaction  of  the  American  public,  that  while  corporal  pun- 
ishments were  in  existence,  crimes  were  less  frequent  than  they 
are  now  ?  Even  could  this  question  be  answered  in  the  affirma- 
tive, it  would  not  be  satisfactory,  since  one  species  of  crimen 
falsi  is  peculiar  to  the  present  period  of  our  history,  from  the 
extensive  creation  of  banking  institutions,  since  the  Penal  laws 
spoken  of  were  abolished.  The  counterfeiting  of  bank  notes 
was  not  known,  because  no  banks  existed.  But  were  larce- 
nies less  frequent?  Were  burglaries,  arson,  and  murder,  less 
frequent?  We  contend  that  they  were  not.  But  what  is 
the  just  and  proper  inquiry  to  be  put  here  ?  It  is  simply  this  : 
Would  corporal  punishments  go  farther  to  prevent  crimes,'than 
solitary  confinement  to  hard  labour  in  our  Penitentiaries  ?  For 
this  is  the  punishment  which  we  hope  yet  to  see  universally 
adopted.  On  this  point  the  Committee  have  no  doubt ;  and 
they  believe,  that  should  this  desired  improvement  take  place, 
and  be  amply  tried,  not  only  corporal  punishment,  but  all  other 
substitutionsTor  the  Penitentiary  System,  would  be  relinquished, 
through  universal  conviction.  Several  objections  occur  to  crop- 
ping the  ears,  slitting  the  nose,  branding  the  forehead,  public 
•whipping,  and  similar  modes  of  treating  felons.  First,  no 
facts  prove  that  such  punishments  are  more  effectual  in  prevent- 
ing offences,  than  our  present  Penitentiary  System,  defective 
as  it  is.  In  the  second  place,  they  render  men  desperate,  in- 
sensible to  shame,  and  dead  to  any  appeals,  either  legal  or  mo- 
ral. What  has  any  person  to  look  or  hope  for,  in  this  world, 
when  his  features  are  so  deformed  as  to  attract  the  scorn  of  the 
public;  or  what  has  the  culprit  to  anticipate,  who  has  received 
the  stripes  of  a  constable,  amid  a  crowd  of  spectators,  who 
will  retail  and  communicate  his  disgrace  to  the  second  and  third 

11 


82 


generation  ?  Thirdly,  tliey  not  only  render  offenders  despe- 
rate, but  they  release  them  immediately,  and  enable  them  to 
exhibit  this  desperation  in  the  perpetration  of  new  crimes. 
There  is  at  least  one  advantage  in  our  Penitentiaries ; 
while  villains  are  shut  up,  society  are  relieved  from  their  depre- 
dations and  outrages.  Not  so,  if  the  space  of  fifteen  minutes 
finishes  their  punishment.  (14)  Fourthly,  the  frequent  inflic- 
tion of  cruel  punishments  inures  the  public  mind  to  barbarities, 
and  destroys  the  advantages  intended  to  be  reaped  from  the 
terror  of  example.  People  can  become  habituated  to  specta- 
cles of  horror,  and  feel  no  pangs  at  beholding  them.  We  can 
scarcely  conceive  of  a  more  shocking  sight  than  the  flocking  of 
boys  to  a  whipping  post,  to  enjoy,  in  revelry  and  mirth,  the 
tortures  of  fellow  beings.  All  solemnity,  all  the  benefits  of  ex- 
ample, are  lost,  when  offenders  are  constantly  doomed  to  suffer 
in  ignominy,  as  a  mark  for  the  gazing  rabble  to  shout  at.  Nor 
is  it  conceived  that  the  American  people  would  tolerate  the 
idea  of  disfiguring  the  persons  of  our  citizens,  with  hacking, 
branding  and  scourging.  But  we  are  told  that  all  arguments 
drawn  from  the  cruelty  of  this  kind  of  punishment  should  be 
abandoned,  since  solitary  confinement  is  still  more  cruel.  This 
is  a  specious  doctrine — not  a  sound  one  Between  physical 
and  moral  suffering,  there  is  a  wide  difference.  The  first  de- 
notes the  propensities  and  passions  of  a  savage  state  of  man. 
In  Morocco,  small  offences  or  misdemeanors,  are  punished  by 
the  bastinado,  or  beating  the  backs  and  legs  with  leather  thongs, 
something  like  the  cat-o'-ninetails  formerly  used  at  the  whip- 
ping posts  in  this  country ;  and  larceny,  by  cutting  off  a  leg  or 
hand,  or  other  bodily  disfiguration.  There  is  also  a  method  of 
tossing  up  criminals,  so  that  they  may  fall  on  the  head  and  frac- 
ture its  bones.  Montesquieu  remarks,  when  speaking  of  the 
Japanese,  that  cruel  and  horrid  punishments  harden  the  public 
mind,  and  tend  to  render  penal  laws  ineffectual.  Of  all  laws, 
we  may  say  that  those  of  Japan  are  the  most  severe,  and  yet 


(14)  Vide  Mr.  B«wle's  letter,  App. 


83 


t  he  most  impotent.  The  administration  of  laws,  distinguished 
fo:  tbeir  severity,  has  no  tendency  to  render  persons  more 
honest  or  more  serviceable  to  the  public,  who  have  incurred 
its  vengeance.  It  ratlier  tends  to  create  hardihood,  the 
abierice  of  shame,  and  the  loss  of  self-regard.  Solitary  con- 
finement may  be  called  a  cruel  punishment,  although  it  is  not 
entitled  to  that  appellation,  however  severe  its  operation  may 
be.  But  admit  its  cruelty — to  what  does  it  lead  i*  To  reflec- 
tion, to  repentance,  to  the  amendment  of  the  criminal.  His 
features  and  his  limbs  remain  as  God  has  made  them.  If  he 
forsakes  the  ways  and  devices  of  the  wicked,  no  external  de- 
formity remains,  a  perpetual  mark  of  public  ignominy,  when 
crime  is  expiated  and  guilt  done  away.  We  trust  and  hope, 
that  the  day  is  far  distant,  when  the  free  states  of  the  union 
will  retrace  their  steps  to  a  system  of  laws,  that  would  be  at 
war  with  civilization,  humanity,  the  principles  of  our  institu- 
tions, and  hostile  to  the  lessons  inculcated  by  the  experience  of 
other  times.  (IS) 

Singular  as  it  may  appear  to  the  enlightened  and  reflecting 
of  other  nations,  there  is  a  disposition  sometimes  indicated  in 
this  country,  to  adopt  capital  punishments  to  a  wide  extent. 
Because  the  Penitentiary  System  has  been  grossly  perverted, 
and  its  principles  lost  sight  of,  by  those  who  have  been  entrust- 
ed with  its  administration  ;  because  an  experiment  has  failed 
before  it  has  been  adequately  tried  ;  in  order  to  preserve  our 
property  and  protect  our  persons,  there  are  occasional  bursts  of 
popular  feeling  and  discontent,  that  denote  symptoms  of  cruelty 
and  error,  inconsistent  with  the  political  institutions  of  the  na- 
tion, and  the  reason  oji  which  they  rest.  Without  any  inquiry 
why  the  Penitentiary  System  has  disappointed  the  hopes  of 
the  states ;  without  any  reflection  on  the  practicability  or  im- 
practicability of  improving  and  perfecting  it ;  capital  punish- 
ments are  urged  as  the  only  means  of  preventing  crimes.  Sup- 
pose we  adopt  this  rennedy  and  execute  criminals  for  all  the 


(16)  Id  relation  to  corporal  puBishmeDts,  the  Committee  widely  differ  from 
Mr.  Raymond.  Vide  his  letter,  App. 


84 


felonies,  that  are  now  punished  by  hard  labour  in  the  different 
State  Prisons ;  what  would  be  the  effect?  The  Committee 
consider  that  two  consequences  would  arise  :  first,  the  laws 
would  not  be  executed  ;  secondly,  if  they  were  rigidly  enfor- 
ced, executions  would  lose  their  terror  by  becoming  common. 
It  was  a  deep  rooted  abhorrence  to  cruel  punishment,  that  first 
diminished  the  number  of  capital  felonies  in  the  United  States  ; 
and  it  is  to  be  hoped,  that  the  influence  of  early  education  and 
the  difiusion  and  inculcation  of  Christianity  for  the  last  few 
years,  have  not  had  an  influence  to  render  us  less  humane  or 
less  careful  in  establishing  sanguinary  laws.  Let  us  amend  our 
Criminal  Codes  in  the  different  states  to-morrow,  and  render 
counterfeiting,  passing  counterfeit  bank  notes,  burglary,  breach- 
es of  the  public  trust,  grand  larceny,  conspiracies,  and  swind- 
ling, or  obtaining  goods,  chattels  and  money,  under  false  pre- 
tences, capital  felonies ; — what  would  be  the  effect  ?  More 
than  two-thirds  of  these  crimes  would  probably  go  unpunished, 
and  therefore  be  committed  with  fresh  impunity ;  for  how  many 
would  not  shrink  from  being  informers,  if  convinced  that  by 
their  testimony  alone,  the  life  of  a  human  being,  perhaps  the 
parent  of  a  large  number  of  children,  was  to  be  taken  ?  What 
would  be  the  reasoning  of  a  large  portion  of  American  citizens 
in  such  a  case  ?  Would  they  not  say  to  themselves,  it  is  aggra- 
vating to  have  our  rights  infringed  upon,  but  better  to  endure 
this  than  be  the  instruments  of  sending  a  fellow  mortal  out  of 
the  world  ?  Such  feelings  might  be  derided,  as  the  offspring 
of  weakness  and  folly  ;  but  they  do  exist,  and  will  exist,  until 
our  sentiments,  as  a  nation,  undergo  a  very  radical  change. 
Grand  Juries  would  be  backward  in  presenting  indictments, 
when  death  was  to  be  the  probable  consequence.  They  would 
find  it  more  consonant  to  their  feelings  to  dismiss  complaints 
than  to  find  a  bill  upon  them.  There  would  also  be  a  difliculty 
in  procuring  juries  to  convict  criminals  under  cruel  laws. 
Twelve  men  would  have  many  agonizing  sensations  in  con- 
demning a  culprit  to  death,  for  stealing  property  to  the  amount 
of  fifty  or  ojie  hundred  doilars,^or  for  passing  a  counterfeit  bank 


85 


note  of  five  or  ten  dollars.  Every  opportunity  would  be  em- 
braced to  find  the  oflender  not  guilty.  Any  doubt  in  the  testi- 
mony, afibrding  an  excuse,  would  produce  an  acquittal.  I  avvs 
to  be  effectual  must  be  certain ;  and  therefore  it  will  be  no  an- 
swer to  say,  that  if  these  minor  depredations  did  escape,  more 
enormous  ones  would  not.  If  men  would  seldom  inform,  and 
juries  shrink  from  convicting,  on  the  smallest  doubt,  and  the 
most  sleader  excuse  or  subterfuge,  what  would  be  the  conse- 
quence .''  Crimes  would  rapidly  increase,  because  a  vast  pro- 
portion of  them  would  go  unpunished.  Again:  if  the  execu- 
tion of  criminals  became  an  ordinary  spectacle,  the  dread  and 
terror  of  this  species  of  punishment  would  be  banished,  and 
its  restraints  be  destroyed.  Mankind  can  be  rendered  familiar 
with  horrid  spectacles,  by  habit.  The  savage  of  our  western 
wilderness  beholds  the  agonies  of  the  prisoner  at  the  stake, 
with  composure.  The  wife  of  the  Hindoo  ascends  the  funeral 
pile  of  her  husband  with  a  firm  step.  The  monsters  of  the 
Inquisition  feel  no  pangs  at  the  tortures  of  their  victims ;  and 
an  execution  in  Japan,  creates  no  more  sensation  than  the 
morning  clouds  that  obscure  the  sun.  The  Romans  beheld  the 
blood  of  their  gladiators,  without  the  movement  of  a  nerve  or 
a  muscle  ;  and  in  Great- Britain,  at  this  day,  the  execution  of 
half  a  score  of  felons,  calls  forth  no  expression  of  horror  from 
the  populace.  In  time,  we  should  betray  the  same  indifference. 
The  frequent  repetition  of  similar  scenes  would  habituate  our 
eyes  to  the  suspension  of  men,  women  and  children,  from  the 
gallows.  There  is  a  habit  of  thought,  as  well  as  a  habit  of  ac- 
tion ;  and  when,  by  continual  occurrence  in  the  mind,  any  kind 
of  punishment  becomes  naturalized  to  our  tone  of  feeling — ab- 
horrence is  overcome. 

But  what  do  we  do,  in  advocating  capital  punishments,  in 
some  ten  or  fifteen  kinds  of  felony  in  the  United  States  ?  We 
do  violence  to  the  moral  feelings  of  the  people  of  this  coun- 
try, which  involuntarily  repel  all  sanguinary  laws.  We  go  fur- 
ther. We  disregard  the  solemn  lessons  of  an  experience  that 
is  drawn  from  the  history  of  successive  ages ;  for,  we  would 


86 


ask,  in  what  period  of  national  history  have  capital  punishments 
suppressed  the  crimes  which  they  were  designed  to  prevent  ? 
Are  we  not  compelled  to  believe  that  they  have  rather  promo- 
ted, than  diminished,  the  evils  they  vveie  intended  to  destroy? 
Take  the  Roman  empire  under  the  Caesars,  during  the  mild 
reigns  of  her  most  humane  and  virtuous  emperors,  who  relax- 
ed the  rigor  of  the  Penal  laws;  crimes  were  less  frequent  than 
under  those  of  her  most  furious  despots,  who  promulgated 
bloody  edicts  in  every  direction.  Alfred  came  to  the  English 
throne  amid  confusion,  war,  and  licentiousness.  He  abolished 
all  capital  punishments  excepting  in  three  kinds  of  felony,  trea- 
son, murder,  and  arson.  Instead  of  increasing,  public  offences 
rapidly  diminished,  and  the  security  of  persons  and  property, 
during  the  peaceful  and  beneficent  reign  of  this  virtuous  prince, 
has  been  a  distinguished  era  in  the  annals  of  the  British  em- 
pire. The  reigns  of  Henry  7th,  Henry  8th,  and  of  Queen 
Elizabeth,  of  England,  are  rrmarkable  for  the  number  of  felo- 
nies which  were  rendered  capital,  and  yet  they  are  noted  for 
the  number  of  criminal  offences  perpetrated  during  their  ex- 
istence. Lord  Bacon  considered  the  penal  laws  the  most 
odious  feature  of  the  government  of  Henry  7th,  During  the 
reign  of  Henry  8th,  there  were  72,000  executions  for  robbe- 
ries; and  while  Elizabeth  was  on  the  throne,  they  were  pecu- 
liarly numerous.  The  contrast  that  modern  history  has  exhib- 
ited, between  the  operation  of  Penal  laws  in  Tuscany  and  the 
Papal  dominions,  is  striking  and  pertinent.  When  the  late 
Grand  Duke  of  Tuscany  ascended  the  throne,  his  dominions 
were  overrun  by  robbers  and  assassins.  Robberies  and  murders 
were  common,  and  the  wheel,  the  rack  and  the  gallows  were 
seen  in  all  quarters.  On  reading  the  celebrated  work  of  the 
Marquis  Beccaria,  he  entirely  abolished  capital  punishments. 
An  army  of  executioners,  with  their  instruments  of  death,  were 
dismissed,  and  milder  laws  rendered  Tuscany  one  of  the  best 
ordered  states  in  Europe,  and  no  where  were  life  and  property 
more  safe.  Punishments  were  proportioned  to  the  offence,  and 
executed  with  ^strictness  and  certainty.   In  the  Papal  domin- 


87 


ions,  separated  from  Tuscany  by  a  small  dyke,  the  severity  of 
punishment  was  kept  up,  and  crimes  continued.  Robbery  and 
homicide  still  continued  to  be  committed.  He  who  robbed  was 
executed.  He  who  robbed  and  murdered,  suffered  no  more. 
The  consequence  was,  that  he  who  was  robbed  was  also  mur- 
dered. Sir  William  Blackstone,  after  speaking  against  the  too 
frequent  infliction  of  capital  punishment,  asks  if  they  have  been 
found  more  salutary  than  those  of  a  milder  character.  "  Was 
the  vast  territory  of  Russia,"  says  he,  "  worse  regulated  under 
the  late  Empress  Elizabeth,  than  under  her  more  sanguinary 
predecessors .''  Is  it  now,  under  Catharine  II.  less  civilized, 
less  social,  less  secure  .''  And  yet  we  are  assured,  that  neither 
of  these  illustrious  Princesses  have,  throughout  their  whole  ad- 
ministration, inflicted  the  penalty  of  death.  And  the  latter  has, 
upon  full  persuasion  of  its  being  useless,  nay  even  pernicious, 
given  orders  for  abolishing  it  entirely,  throughout  her  extensive 
dominions."  (16) 

Were  atrocious  crimes  more  frequent  in  France  under  the 
reign  of  Napoleon,  than  under  the  government  of  any  one  of 
the  Bourbons,  for  a  half  a  century  before  him  ?  We  know  they 
were  not.  And  yet  he  greatly  moderated  the  Penal  Code,  and 
assumed  the  sceptre  of  power,  after  the  revolution  had  poured 
its  overwhelming  torrents  of  licentiousness,  over  the  kingdom. 

But  why  thus  range  the  globe  for  illustrations  ?  There  is  a 
nation  in  the  fulness  of  life  and  glory,  to  whom  we  can  refer. 
England  is  before  our  eyes.  The  present  state  of  her  Penal 
laws  is  worth  the  volumes  of  centuries.  We  know  of  no  na- 
tion in  existence,  which  has  so  many  capital  felonies  as  Great- 
Britain,  and  we  know  of  none  where  capital  punishments  are  so 
numerous,  and  Penal  laws  more  ineffectual  to  compass  their  ends. 
If  the  infliction  of  death  is  so  well  calculated  to  deter  men  from 
committing  offences,  why  do  they  wholly  fail  to  effect  this  result 
in  England Criminals  are  constantly  executed  for  forgery, 
and  still  forgery  goes  on.    Felons  are  continually  executed  for 


(16)  CommeDtariea.  vol.  4,  p.  10. 


88 


stealing,  and  still  thefts  increase.  They  are  committed  under 
the  very  gibbets  where  thieves  are  hung.  What  is  this  but  ex- 
perience putting  down  theory.  A  man  is  executed  for  picking 
a  pocket,  and  during  the  execution,  three-score  pockets  are 
rifled,  and  the  suffering  of  one  criminal  leads  to  the  liability  of 
twenty  or  an  hundred  more.  The  British  Parliament  have  enact- 
ed that  the  passing  of  a  one  pound  bank  note  shall  be  punished 
with  death.  What  has  been  the  effect  of  this  statute  in  sup- 
pressing that  crime  In  1814,  there  were  10,343  convictions 
under  this  act;  in  1815,  14,000;  in  1816,  21,000  and  upwards; 
and  in  1817,  23,000  and  upwards.  Is  this  preventing  felony  by 
the  taking  away  of  life?  (17)  Mr.  Buxton,  in  his  late  speech 
in  the  House  of  Commons,  states  expressly,  that  in  the  face  of 
more  than  200  capital  punishments,  crimes  that  fall  under  them, 
continue  to  multiply.  The  Criminal  Code  in  France  is  less  se- 
vere than  that  of  England,  and  yet,  with  more  than  double  the 
population  of  Great-Britain,  the  number  of  her  criminals  is  less. 
But  there  is  another  great  evil  in  the  accumulation  of  capital 
offences  in  England — one  that  we  have  mentioned  in  our  argu- 
ments— the  laws  are  not  executed.  The  injured  will  not  com- 
plain, witnesses  will  not  appear.  Grand  juries  will  not  find  in- 
dictments, Petit  juries  will  not  convict,  and  if  they  do  convict, 
the  sentence  is  often  rendered  inoperative.  The  same  evil  hajs 
existed  for  generations.  So  dreadful  a  list,"  said  Sir  William 
Blackstone,  when  speaking  of  the  penal  statutes  inflicting  death 
in  England,  "  instead  of  diminishing,  increases  the  number  of 
offenders.  The  injured,  through  compassion,  will  forbear  to 
prosecute  ;  juries,  through  compassion,  will  sometimes  forget 
their  oaths,  and  either  acquit  the  guilty  or  mitigate  the  offence  ; 
and  judges,  through  compassion,  will  respite  one  half  of  the 
convicts,  and  recommend  them  to  the  royal  mercy."  (18)  The 
investigations  of  the  House  of  Commons,  the  witnesses  exa-  ' 
mined  at  the  bar  of  that  body,  the  speeches  of  eminent  men  in 

Vide  Report  of  Select  Committee  on  the  Criminal  Laws,  to  House  of  Com- 
mons, 1819,  p  79. 
(18)  Black.  Com- 


89 


both  bouses  of  Parliament,  go  far  in  settling  this  grand  fact. 
Sir  Samuel  Romilly,  in  a  speech  before  the  British  Legislature 
on  the  26th  March,  iSlS,  stated,  that  "  he  would  take  the  pre- 
sent opportunity  of  mentioning  the  state  of  the  law,  as  derived 
from  the  returns  on  the  table,  with  respect  to  the  act  making  it 
capital  to  steal  within  a  dwelling  house  to  the  amount  of  forty 
shillings.  Within  eight  years,  down  to  1816,  no  less  than  1097 
persons  had  been  tried  for  this  offence.  Of  these,  293  only  had 
been  capitally  convicted,  and  not  one  had  been  executra.  In 
1816,  131  more  persons  had  been  tried,  of  whom  49  had  been 
capitally  convicted,  and  one  (whose  case  was  accompanied  with 
great  aggravations)  executed.  So  that  of  1228  individuals 
tried,  342  only  had  been  capitally  convicted,  (the  juries  either 
acquitting  the  886,  or  finding  them  guilty  of  stealing  to  a  less 
amount,)  and  only  one  person  executed."  In  1732,  there  was 
a  statute  passed  in  England,  rendering  frauds,  in  cases  of  bank- 
ruptcy, capital  crimes.  Since  that  period,  it  is  ascertained  that 
there  have  been  40,000  bankruptcies ;  and  yet  Basil  Montagu, 
Esq.  stated,  in  a  late  examination  before  a  committee  of  the 
j  House  of  Commons,  that  there  had  been  but  nine  or  ten  prose- 
cutions during  87  years,  and  but  three  executions,  although  the 
frauds  within  the  statute  were  common  and  proverbial.  (19) 

(19)  Rep  House  Com.  1819,  p.  79. 

Mr.  Biuloo,  in  a  late  speech  on  the  Criminal  Code  of  England,  adduces  the 
following  extract  from  a  speech  of  Queen  Elizabeth  to  her  Parliament ; — ''  A 
law  without  execution,  is  but  a  body  without  life,  a  cause  without  an  effect,  a 

I  countenance  of  a  thing,  and  indeed  nothing.  Pen,  ink  and  paper,  are  as  much 
towards  the  governance  of  the  commonwealth,  as  the  rudder  or  helm  of  a  ship 

I   jwrveth  to  the  .governance  of  it.  without  a  governor,  and  as  rods  for  correction 

I  without  hands.  Were  it  not  mere  madness  for  a  man  to  provide  fair  torches  to 
guide  his  going  by  night,  and  when  he  should  use  them  in  the  dark,  to  carry  them 
unlit.'  Or  for  one  to  provide  fair  and  handsome  tools,  to  prune  or  reform  his 
orchard  or  garden,  and  to  lay  them  up  without  use  ?  And  what  thing  else  is  it 
to  make  wholesome  and  provident  laws  in  fair  hook«,  and  to  |sy  them  up  safe, 
without  seeing  them  executed  ?  Surely,  in  reason,  there  is  no  difference  between 
the  examples,  saving  that  (he  making  of  laws  wilhou*  espcntion  is  in  much, 
worse  case,  than  those  vain  provisions  before  remembered  ;  for  there,  albeit, 

1    they  do  no  good,  yet  they  do  no  hurt ;  but  the  making  of  laws  without  esecu- 


12 


90 


Hence  we  see  that  when  sanguinary  laws  are  executed,  they 
fail  to  prevent  crimes,  and  that  when  they  are  peculiarly  severe, 
they  remain  a  dead  letter;  and  thus  directly  promote,  instead 
of  suppressing  crimes — entailing  on  the  community  a  compli- 
cation of  immoralities.  The  dangerous  tendency  of  frequent 
capital  punishments,  and  their  total  failure  to  control  and  re- 
strain the  vicious  propensities  of  mankind,  have  long  been  per- 
ceived and  enforced,  by  men  who  have  shone  among  the  first 
luminaries  that  ever  diffused  light  and  truth  through  the  world. 
More  than  three  hundred  years  ago,  that  learned  and  excellent 
man,  Sir  Thomas  More,  assailed  the  enormity  of  the  Penal 
Code  of  Great-Britain.  His  writings  on  criminal  law,  have  not 
yet  lost  their  impression  on  the  feelings  of  civilized  man. 
About  two  hundred  years  ago,  Sir  Edward  Coke,  that  venera- 
ble giant  of  jurisprudence,  on  whom  we  yet  cast  back  our  eyes 
with  reverence  and  admiration,  entered  his  solemn  caveat 
against  the  taking  of  human  life  by  laws  like  those  of  his  own 
country.  "  What  a  lamentable  case  it  is,"  said  he,  "  that  so 
many  Christian  men  and  women  should  be  strangled  on  that 
cursed  tree  of  the  gallows:  insomuch  as  if  in  a  large  field  a 
man  might  see  together  all  the  Christians  that  but  in  one  year, 
throughout  England,  come  to  that  untimely  and  ignominious 
death,  if  there  were  any  spark  of  grace  or  charity  in  him,  it 
would  make  his  heart  to  bleed  with  pity  and  compassion."  ^20) 
He  then  proceeds  to  advise  reform.  Sir  Francis  Bacon,  the 
Lord  Chancellor  of  England,  whose  writings  awoke  the  long 
slumbers  of  human  reason  remarked  to  Queen  Elizabeth  :  "so 
it  is  most  certain  that  your  people  are  so  ensnared  in  a  multi- 
tude of  Penal  laws,  that  the  execution  of  them  cannot  be 
borne  "    Sir  Walter  Raleigh  advocated  the  same  principles, 

tion  does  very  much  harm  ;  for  that  breeds  aod  brings  forth  contempt  of  lawj 
and  lawmakprs,  and  of  all  magistrates :  which  is  the  very  foundation  of  all  go-l 
ve  nance,  and  therefore  must  needs  be  great  and  heinous  in  those  that  are  the. 
causers  of  this.  Indeed,  they  are  the  very  occasions  of  all  injuries  and  injusticv, 
apd  of  all  disorders  and  unquietncss  in  the  commonwealth." 
(to)  Vide  Epilogue  to  bis  fourth  Institute. 


91 


as  early  as  1611  ;  Cbillingworih  in  1640,  and  Doctor  Johnsoo 
in  1731.    In  1750,  the  increase  of  certain  crimes  that  were 
capital  felonies,  roused  the  attention  of  the  British  Parliament. 
A  committee  was  appointed  in  the  House  of  Commons,  con- 
sisting of  the  Earl  of  Chatham,  Mr.  Pelham,  then  Prime  Minis- 
ter; Mr.  Grenville,  Mr.  Littleton  and  Charles  Townsend,  suc- 
cessively Secretaries  of  State  ;  Sir  C.  Loyd,  then  a  distinguished 
member  of  the  English  Bar ;  and  Sir  Dudley  Ryder,  then  At- 
torney General,  and  afterwards  the  Chief  Justice  of  England. 
These  great  ornaments  of  the  British  empire  recommended 
the  exchange  of  death  for  other  adequate  punishments,  and  in- 
troduced a  bill  that  was  passed  in  the  House  of  Commons  and 
defeated  in  the  House  of  Peers.    Twenty  years  afterwards,  io 
1770,  another  committee,  consisting  of  Charles  James  Fox, 
Sir  William  Meredith,  Sergeant  Glynn,  and  Sir  C.  Banbury, 
was  appointed,  who  also  reported  a  great  reduction  of  capital 
punishments,  and  introduced  a  bill  that  passed  the  House  of 
Commons  and  was  rejected  in  the  House  of  Lords.    "  Neither 
was  that  bill  opposed,"  said  Mr.  M'Intosb,  in  one  of  his  elo- 
quent speeches  in  Parliament,  "  by  any  of  the  great  ornaments 
of  the  House  of  Lords  of  that  day,  Lord  Cambden  or  Lord 
Mansfield  ;  it  was  thrown  out  on  the  opposition  of  others,  whom 
I  will  not  name,  and  whose  names  will  be  little  known  to  poste- 
rity."   Since  that  day,  such  men  as  Mr.  Pitt,  Lord  Erskine,  the 
Marquis  of  Lansdown,  Mr.  Canning,  Lord  Grey.  Sir  Samuel 
Romilly,  Mr.  Roscoe,  Lord  Lauderdale,  Sir  James  M'Into«h, 
Mr.  VVhitbread,  Mr.  Wilberforce,  Mr.  Buxton,  Mr.  Colquhuun, 
and  others,  whose  rank  and  talents  are  well  known  to  the  Ame- 
rican public,  have  made  strenuous  eflForts  to  procure  the  dimi- 
nution of  capital  punishments  in  England.    But  why,  we  shall 
be  asked,  has  England  still  retained  her  Penal  Code,  against 
the  genius  and  influence  of  such  a  host .''    And  we  will  ask, 
why  has  she  tolerated  pauperism  by  the  most  careless  policy, 
since  the  days  of  William  and  Mary,  when  she  was  first  loudly 
warned  against  this  evil .''   Why  did  she  tolerate  the  slave  trade 
for  years  after  Fox,  Pitt,  and  Wilberforce,  united  their  exer- 


92 


tions  for  its  abolition  ?  Why  does  she  oppress  the  Catholics  of 
Ireland,  and  spread  the  gloom  of  bondage  over  the  land  of 
fame  and  genius  ?  Why  tolerate  the  errors  of  her  representa- 
tive system  ?  Why  do  nations  ever  oppose  the  voice  of  reason  ? 
Why,  in  fact,  have  the  empires  and  kingdoms  of  the  earth  slept 
in  chains  for  ages  ?  Why  have  rational  systems  of  government 
and  rational  laws,  been  shut  out  for  centuries,  from  the  pale  of 
civilized  communities  ?  Or,  to  come  nearer  home,  why  is  there 
a  disposition  in  this  country  to  pass  over  reason  and  Christiani- 
ty, to  the  adoption  of  punishments  that  would  disgrace  the  pa- 
ges of  American  history  ?  But  the  day  of  reform  is  fast  ap>i 
proaching  in  England,  and  the  awful  effects  of  capital  punish^ 
inent  are  spreading  a  cloud  over  the  face  of  society.  Crimes 
and  outrages  increase,  and  the  destruction  of  human  life  but 
augments  their  atrocity  The  last  Report  in  the  House  of 
Commons,  an  l  the  debates  in  the  same  body,  carry  the  strong- 
est conviction  that  the  Criminal  Code  of  England  cannot  last. 
Mr.  Colquhoun,  who  was  the  greatest  police  magistrate  that 
England  ever  has  seen,  and  who  has  written  more  largely  on 
the  subject  of  police  than  any  other  man,  uttered  these  unqual* 
ified  words,  to  the  committee  that  represented  the  British  na- 
tion, four  years  ago  :  "  It  has  occurred  to  me,  that  except  in 
cases  of  high  treason,  murder,  sodomy,  arson,  and  other  offen- 
ces, accompanied  with  violence  to  the  person,  the  punishment 
of  death  may  be  dispensed  with,  under  circumstances  advanta- 
geous to  criminal  justice."  (21)  If  any  thing  further  is  wanting 
to  illustrate  the  fact,  that  the  criminal  laws  of  England  are  at 
variance  with  the  moral  feelings  of  the  British  community,  we 
could  successfully  allude  to  the  late  publication  of  Mr.  Ro» 
coe.  (22)  In  this  invaluable  treatise,  talents,  philosophy  and 
research,  are  blended,  in  a  triumphant  vindication  of  the  princi- 
ples of  humanity.  No  man  can  answer  it.  The  illustrious 
author  condemns  the  extensive  adoption  of  capital  punishments, 
and  recommends  the  Penitentiary  System  to  the  English  na- 

(21)  Examination  before  Select  Com.  House  Com.  Report  1819.  p.  66. 
'  (22)  Observations  on  Penal  Jurisprudence  and  the  reform  of  criminals. 


98^' 

1  loij.  He  thusdirects  their  attention  to  the  United  States  :  "  For- 
tunately, however,  whilst  the  civilized  world  has  been  groaning 
under  the  effects  of  a  barbarous  and  sanguinary  Code  of  lawg, 
mitigated  at  times  by  the  milder  spirit  of  philosophy,  another 
system  has  arisen,  which  from  obscure  beginnings,  has  gradually 
attracted  more  general  notice,  till  at  length  it  has  been  adopt- 
ed in  practice  on  an  extensive  scale  and  affords  a  favourable 
prospect  of  ultimate  success."  (23) 

And  with  these  lights  shining  in  our  eyes — with  this  deep 
voice  of  experience  sounding  in  our  ears,  shall  we  cast  off  our 
moral  feelings,  and  all  the  principles  of  our  early  education  ? 
Shall  we  renounce  the  spirit  of  our  constitutions,  as  well  as  the 
counsels  of  sound  policy  and  humanity,  and  fill  our  statute  books 
with  bloody  laws  ?  Are  we  ready  to  behold  the  instruments  of 
death  and  torture  in  our  peaceful  villages,  where  education  and 
moral  maxims  have  gained  dominion  ?  Are  we  prepared  to 
see  the  gibbet  erected  along  the  borders  of  our  highways,  and 
by  the  side  of  the  pleasant  fields  of  the  husbandman  ?  Are  we 
willing  to  have  the  populace  of  our  towns  and  cities  constantly 
pouring  forth,  as  to  a  theatre  of  sport  and  revelry,  to  behold 
the  last  sufferings  of  capital  offenders  f  On  this  point,  we  shall 
say  no  more.  Against  the  extension  of  capital  punishments, 
the  Committee  feel  it  their  duty  to  remonstrate,  in  every  pro- 
per shape  and  manner — at  all  times  and  all  appropriate  occa- 
sions. And  they  regret  that  the  sentiment,  once  expressed  by 
Sir  Henry  Spelman,  is  forcibly  brought  to  mind  at  this  enlight- 
ened period  of  the  world.  He  once  remarked,  when  speaking 
of  penal  laws,  that  in  proportion  as  governments  were  rendered 
better,  and  civilization  had  advanced,  human  life  seemed  to  be 
rendered  of  less  worth  and  consequence  in  the  eyes  of  legis- 
lators and  lawgivers.  (24) 

The  anxiety  which  prevails  in  the  United  States,  on  the  sub- 

(23)  lb.  page  83. 

(ti)  See  the  bead  Capital  Powishments,  in  the  Appendix.  Let  it  be  read 
by  every  American  citizen,  who  thinks  and  acts  for  himself.  The  testimony 
before  the  House  of  Commons,  and  Mr.  Roscoe's  arguments,  cannot  be  refuted. 


94 


ject  of  the  Penitentiary  System,  is  deeply  cherished  by  the  civ- 
ilized nations  of  the  other  continent.  The  third  Report  of  the 
Society  for  the  improvement  of  prison  discipline,  and  for  the 
reformation  of  Juvenile  offenders,  embracing  more  than  two  hun- 
dred pages,  combines  a  mass  of  the  most  interesting  matter. 
This  association  is  sustained  by  the  first  men  in  England,  wheth- 
er we  consider  rank,  talents,  or  wealth  ;  and  its  funds  are  ample 
for  the  grandest  purposes.  It  is  carrying  reformation  through 
the  dominions  of  the  British  crown,  and  collecting  information 
from  all  quarters  of  Europe,  and  diffusing  it  back  again,  through 
countless  channels. 

Many  of  the  evils  displayed  in  our  Penitentiaries,  have  been 
found  in  the  prisons  of  England.  The  want  of  classification, 
the  want  of  constant  labour,  the  evils  of  continual  intercourse, 
the  increase  of  depravity,  and  the  pernicious  tendency  of  grant- 
ing pardons  and  respites,  are  among  the  prominent  defects 
pointed  out. 

Solitary  confinement  is  daily  gaining  advocates.  The  Step- 
ping Mill,  for  the  grinding  of  corn,  by  which  any  number  of  con- 
victs can  be  employed,  without  any  departure  from  all  necessa- 
ry restraints,  is  brought  forward  by  the  society  with  much 
zeal. 

"  A  good  prison,"  says  the  Report,  "  is  a  school  of  moral 
discipline,  where  incentives  to  vicious  propensities  are  removed 
— where  drunkenness  and  gambling  are  superseded  by  absti- 
nence, order,  and  decorum — where,  by  personal  seclusion  and 
judicious  classification,  the  evils  resulting  from  contamination, 
are  prevented — where  the  refractory  are  subdued  by  punish- 
ment, and  the  idle  compelled  to  labour  until  industry  shall  be- 
come a  habit.  These  are  the  leading  features  of  a  salutary  sys- 
tem of  gaol  management :  and  it  seems  wisely  ordered,  that  this 
discipline  should  form,  at  once  the  medium  of  reformation  and 
the  intrument  of  punishment.  That  a  well  regulated  system  of 
prison  discipline,"  continues  this  document,  "  represses  crime, 
is  proved  by  the  best  possible  evidence."  It  further  states, 
"  that  in  a  great  number  of  instances,  offenders,  even  the  roost 


95 


hardened,  who  have  for  a  reasonable  time  been  subjected  to  a 
well  regulated  system  of  discipline,  do  abstain  from  the  further 
violation  of  the  law,  and  have  in  a  variety  of  cases  been  known  to 
abandon  their  criminal  pursuit."  It  then  proceeds  to  illustrate 
this  position,  by  shewing  that  while  in  prisons  not  under  good 
discipline,  the  re  committals  will  vary  from  fifteen  to  fifty  per 
cent :  those  to  prisons  under  good  management  will  vary  from 
one  to  seven  per  cent-  (25) 

These  important  facts  afibrd  evidence  that  should  induce  the 
American  people  to  persevere  in  every  rational  effort,  to  im- 
prove the  management  of  our  Penitentiaries.  It  shews  that 
while  capital  punishments  are  without  avail  in  England,  that  ex- 
ertions to  repress  crime  in  the  same  country,  by  the  judicious 
management  of  criminals,  meets  with  signal  success. 

We  are  fully  aware,  that  great  consideration  is  attached  to 
the  Penitentiary  System  in  the  United  Srates,  by  the  enlighten- 
ed men  in  Europe,  who  are  now  combining  their  exertions  to 
produce  a  radical  reform  in  Penal  Jurisprudence.  Nor  are  im- 
provements in  the  execution  of  Penal  laws  confined  to  England. 
The  Report  of  the  Prison  Society  of  Paris,  shews  that  much  is 
doing  in  France,  to  combine  punishment  with  reformation. 
In  Ireland,  the,  labours  of  the  Dublin  Association,  for  the  im- 
provement of  prisons  are  working  salutary  changes.  In  Swit- 
zerland, some  useful  reforms  are  taking  place.  In  Russia,  an 
Association  for  the  same  purpose  has  been  created  :  the  loca- 
tion is  at  St.  Petersburgh,  under  the  sanction  of  the  Emperor 
Alexander,  who,  is  giving  force  and  authority  to  its  proceedings, 
throughout  his  wide  dominions.  In  Sweden,  and  Norway,  in- 
formation of  the  condition  of  all  the  jails  is  collecting  under 
the  patronage  of  the  two  governments,  that  the  hand  of  correc- 
tion may  be  successfully  applied  in  the  treatment  of  criminals 

(25)  Preston,  4  per  cent.— Wakefield,  4  percent — Bury,  5  per  cent — Devizes, 
the  general  average,  about  3  percent,  and  for  felons,  only  1  percent. — Eodurin, 
8  per  cent. — Ipswich,  3  per  cent. —  Lewis,  6  per  cent — and  even  at  Gloucester, 
where  the  prison  is  particularly  crowded,  only  7  per  cent.     Repobt,  p.  86. 


96 


after  their  sentence  to  public  prjsons.(26)  Let  them  not  feel  their 
prospects  darkened — let  not  their  efforts  be  weakened,  by  the 
partial  failure  of  our  own  system.  Not  a  fact  remains  on  record 
— not  a  defect  has  been  revealed,  in  the  projrress  of  thirty 
years,  to  convince  us  that  it  cannot  be  rendered  ail  that  it  was 
ever  expected  to  be.  And  the  Committee  do  feel  ■themselves 
bound  to  lay  down  the  following  broad  positions : 

First.  That  the  Penitentiary  System,  as  it  now  exists,  in  the 
United  States,  with  all  its  defects,  is  preferable  to  the  former 
systems  of  punishment  in  this  country. 

Secondly.  That  it  is  capable  of  being  so  improved,  as  to  be- 
come the  most  judicious  and  effective  system  of  punishment 
ever  known  in  ancient  or  modern  times. 

Thirdly.  That  where  it  has  been  properly  administered,  as  it 
formerly  was  in  Pennsylvania  and  New- York,  it  has  succeeded 
and  answered  the  expectations  of  its  early  friends. 

Fourthly.  That  solitary  confinement,  by  night  and  by  day, 
combined  with  other  regulations  suggested  in  this  Report,  will 
remedy  all  existing  evils. 

Fifthly.  That  it  is  the  duty  of  the  different  states  of  the  Union 
to  proceed,  without  delay,  to  its  improvement  and  perfection. 

Lastly.  That  corporal  punishments  and  the  infliction  of 
death,  would  not  prove  congenial  to  the  moral  sentiments  and 
feelings  of  the  American  people  :  and  that  the  transportation 
of  convicts,  is  visionary,  impracticable,  and  would  not  prevent 
crimes  and  offences,  even  if  it  were  adopted  in  our  penal  stat- 
utes. The  Committee  hope  and  trust,  that  enlightened,  hu- 
mane, and  public  spirited  individuals,  of  the  different  States  in 
the  Union,  will  feel  the  responsibility  that  rests  upon  this  coun- 
try in  relation  to  the  System  of  which  wc  have  so  fully  spoken. 

This  is  no  common  age  in  the  annals  of  mankind.  More  is 
now  doing  to  ameliorate  the  condition  and  to  promote  the  hap- 
piness of  the  human  race,  than  any  period  of  society  has  accom- 
plished. The  errors  and  vices  of  preceding  centuries  are  in 
the  way  of  correction.    There  is  a  unity  of  thought,  design, 


(2G)  Vide  App.  to  the  Report  last  alluded  to. 


97 


and  action,  among  the  most  powerful  empires  of  the  earth,  that 
stands  a  moral  phenomenon  in  the  history  of  governments.  At 
length  the  spirit  of  Howard  begins  to  walk  abroad  over  the 
face  of  Europe ;  at  length  his  voice  is  heard  from  the  dark 
abodes  of  the  wretched  and  forsaken  of  our  species — from  the 
peaceful  vallies  of  Switzerland,  to  the  Kremlin  of  Moscow.* 
Penal  jurisprudence  gathers  around  it  the  regards  of  the  jurists 
and  the  lawgiver,  and  commands  the  illustrations  of  genius  and 
reflection.  Its  importance  to  the  welfare  and  safety  of  nations 
is  duly  considered,  and  on©  improvement  is  rapidly  succeeding 
another.  What  do  we  then  owe  to  ourselves — what  do  we  owe 
to  the  world  as  a  nation  ?  Are  we  to  permit  caprice  and  preju- 
dice to  govern  us,  on  a  subject  interesting  to  ourselves  and  inter- 
esting to  mankind,  or  are  we  to  remember  that  a  great  experi- 
ment in  civil  policy,  blended  with  the  dearest  interests  of  hu- 
manity, should  not  be  abandoned,  until  tested  by  fidelity  and 
candour.''  If  a  mild  Criminal  Code,  can  be  fairly  tried  any 
where,  it  can  be  tried  in  this  country.  Our  institutions  were 
established  on  the  will  of  the  people.  They  were  the  off- 
spring of  enlightened  views  and  independent  feelings.  Edu- 
cation is  more  generally  difllised  here,  than  elsewhere  on  the 
civilized  globe.  The  civil  relations  of  life  are  less  complex — 
there  is  less  of  poverty  and  less  of  oppression.  The  cry  of 
bread  and  the  approach  of  general  want,  are  never  known  :  pop- 
ular sentiment  is  disposed  to  mildness,  and  to  che  adoption  of 
virtuous  restraints.  If  the  Penitentiary  System  should  be  aban- 
doned, in  such  a  country,  what  would  the  legislators  of  Europe 
hereafter  say  What  would  those  who  must  hereafter  raise 
their  voices  in  our  own  halls  of  legislation,  say  .•'  A  System 
founded  on  benevolent  principles,  was  tried  for  thirty  years  un- 
der circumstances  the  most  propitious  :  it  terminated  in  failure 
and  disappointment.    Why  should  we  again  traverse  the  same 

•  "  Instead  of  boasting  of  the  name  of  Howard,"  says  Mr.  Roscoe,  "  we  ought 
rather  to  blush  at  its  recollection,  when  we  reflect  that  it  is  upwards  of  forty 
years  since  the  publication  of  his  work,  and  that  little  iaiprovement  has  yet  been 
made." 


13 


98 


ground  of  experiment  to  meet  with  the  same  calamitous  results  ! 
The  causes  of  its  failure  would  not  descend  to  an  impartial  pos- 
terity, with  the  story  of  its  unfortunate  termination.  A  lasting 
and  unqualified  condemnation  would  settle  over  its  untimely 
grave.  Devoutly  do  we  trust  that  this  train  of  prospective  re- 
flections will  never  exist  in  sober  reality.  Is  an  attempt  to  im- 
pose the  Criminal  laws  of  nations  worthy  of  a  free  people  .''  Is 
an  attempt  to  wipe  from  the  Penal  codes  of  empires  the  shades 
of  barbarism  and  cruelty  by  example,  worthy  of  christian  land 
Are  the  interests  of  bnmanity  anH  the  plevation  of  our  speciies, 
objects  worthy  of  constant  solicitude,  among  a  people  who  have 
laid  the  deep  foundations  of  the  most  rational  and  perfect  con- 
stitution of  government  that  the  long  career  of  six  hundred  cen- 
turies has  produced .''  When  popular  states,  in  the  vigor  of 
virtue  and  enterprise,  forget  the  glorious  march  of  the  human 
mind  that  has  struck  them  into  existence — when  they  forget  their 
character  in  the  scale  of  principalities  and  kingdoms,  and  the 
hopes  of  the  bond  and  the  free  that  are  embosomed  in  their 
fortunes — when  such  states  turn  back  and  pursue  the  steps  that 
lead  to  the  dark  policy  of  despotic  governments,  the  prospects 
of  progressive  improvenjent  among  mankind  are  indeed  forlorn 
and  discouraging.  There  are  principles  and  feelings  in  the 
American  nation  that  will  produce  results  more  grateful  and 
benificent. 

To  laws  well  adapted  to  their  end,  and  to  the  certain  and  un- 
deviating  execution  of  these  laws,  we  look  for  the  direct  pre- 
vention of  crimes  and  the  reform  of  offenders.  These  are  the 
premises  which  we  lay  down  and  attempt  to  sustain.  But  wfe 
must  go  further ;  we  must  endeavour  to  narrow  down  the  ne- 
cessary application  of  these  laws,  by  the  diffusion  of  elementaiy 
education,  especially  among  the  poorer  classes  of  children. 
Deterring  men  from  committing  crimes  by  the  fear  of  punish- 
ment, is  one  thing  :  creating  in  the  mind  a  deep  abhorrence  to 
what  is  morally  wrong,  is  another.  The  generous  and  liberal 
endowment  of  our  free  school  establishments,  more  especially 
in  our  large  towns  and  cities,  is  directly  connected  with  a  sacred 


99 


observance  of  the  laws.  This  will  lessen  the  number  of  those 
unfortunate  beings  who  become  the  subjects  of  severity  ;  and 
the  more  rare  we  render  offences,  the  more  force  we  give  the 
influence  of  example,  and  the  more  restraint  we  impart  to  the 
sentence  of  a  criminal  tribunal.  When  many  suffer,  shame  is 
divided,  and  felons  mutually  countenance  each  other.  When 
one  suffers,  he  stands  in  the  solitude  of  disgrace  and  reproach, 
and  distinction  carries  poignancy  and  retribution. 

In  submitting  this  Report  to  the  American  people,  the  Com- 
mittee feel  sensible  that  they  have  but  commenced  a  work  whose 
completion  will  require  many  subsequent  exertions.  The  com- 
munity is  prepared  for  a  great  change,  in  the  administration  of 
our  Penal  laws ;  and  if  we  have  been  successful  in  directing  the 
views  of  the  public  to  proper  objects  of  consideration  ;  if  our 
ideas  of  existing  defects  in  the  Penitentiary  System,  and  of  the 
most  appropriate  remedies  to  be  applied  for  their  eradication, 
are  calculated  to  awaken  candid  and  anxious  inquiry,  we  feel 
that  manifold  benefits  may  follow  our  labours. 

The  committee  also  feel  sensible,  that  no  time  should  be  lost 
in  collecting  those  facts,  arranging  those  tables,  and  preparing 
those  data,  that  will  enable  us  to  institute  comparisons  and  to 
draw  more  perfect  deductions.  The  history  of  our  Peniten- 
tiaries is  crude  and  defective.  Their  management  has  not 
been  sufficiently  uniform  to  afford  a  well  tested  series  of  facts, 
and  to  permit  general  demonstration.  The  increase  of  popu- 
lation ;  the  changes  in  the  internal  condition  of  the  country  ; 
the  want  of  employment  in  the  most  populous  places  ;  the  great 
facilities  for  the  forgery  and  circulation  of  spurious  notes,  crea- 
ted by  the  rapid  and  impolitic  increase  of  banking  institutions, 
disqualify  us  from  establishing  those  tests  of  the  efficacy  or  in- 
efficacy  of  laws,  that  can  be  found  in  older  countries,  where 
there  is  stability  in  all  the  interior  relations  of  the  State.  Vet 
some  land-marks  may  be  erected. 

In  case  solitary  confinement  should  be  resorted  to  in  the 
United  States,  to  that  extent  which  would  meet  the  views  of  the 
Committee,  an  important  change  in  the  Criminal  Codes  of  the 


100 


different  States  would  become  requisite.  The  term  of  impri- 
sonment would  be  necessarily  much  shorter  than  it  is  at  present, 
and  be  graduated  to  the  moral  complexion  of  different  offen- 
ces, from  the  highest  to  the  lowest  crime.  The  first  question 
is,  how  shall  we  render  punishments  effectual The  next  is  to 
what  extent  shall  they  be  aj)plied  ?  When  the  entire  seclusion 
of  convicts  is  fully  tried,  the  term  of  confinement,  as  we  have 
previously  remarked,  can  be  settled. 

Since  the  foregoing  pages  were  writlcn,  the  Honourable 
Samuel  M.  Hopkins,  of  the  New-York  Senate,  has  made  a 
most  interesting  report  to  that  body,  on  the  Penitentiary  Sys- 
tem of  our  own  state.  This  document  will  be  found  the  last 
article  in  the  Appendix.  It  embraces  many  of  the  views  which 
we  have  advanced,  and  recommends  the  solitary  confinement 
of  convicts,  in  strong  and  emphatic  language.  Mr.  Hopkins  de- 
serves the  thanks  of  the  pubHc  for  his  lucid  and  convincing  ex- 
position. In  this  country  and  in  Europe,  it  will  be  examined 
with  interest.  It  states  the  overwhelming  fact,  that  since  the 
commencement  of  our  system  in  this  state,  no  less  than  2,819 
convicts  have  been  discharged  out  of  the  state  prison,  by  par- 
dons, and  the  whole  number  of  convictions,  has  been  5,069. 
Of  the  whole  number  of  felons,  considerably  less  than  one 
half  are  natives  of  this  state,  and  nearly  one  third,  are  from  for- 
eign countries.  The  rest  of  course,  are  from  various  parts  of 
the  union. 

The  national  government  has  no  superintendance  over  the 
Penitentiary  System  :  Its  improvement  devolves  on  the  differ- 
ent Slates.  The  Committee  will  therefore  send  this  Report 
into  the  various  sections  of  the  Union ;  and  they  hope  that  it 
will  elicit,  in  return,  the  strictures  and  suggestions  of  men,  who 
are  capable  of  casting  light  on  the  grand  inquiry  which  it  em- 
braces. 

The  Committee  return  their  sincere  thanks  to  those  gentle- 
men, who  have  forwarded  them  answers  to  their  circulars. 
Their  letters  arc  contained  in  the  appendix,  and  will  be  read 
with  the  liveliest  interest.    In  rendering  this  tribute  of  grati- 


101 


tude,  they  feel  regret  that  a  great  majority  of  their  circulars 
were  neither  answered  nor  noticed. 

In  conclusion,  it  becomes  necessary  to  remark,  that  the  fore- 
going is  but  a  Report  in  part.  It  will  be  followed  by  a  second 
Report,  as  soon  as  circumstances  may  render  it  expedient- 

CHARLES  G.  HAINES,  Chairman  of  the  Commiitee. 

(Note  by  the  Chairman  of  the  Committee.) 

The  following  named  gentlemen  compose  the  Committee 
from  which  this  Report  emanates : — The  Hon.  Cadwalladcr 
D.  Colden,  Thomas  Eddy,  Esq.  Hon.  Peter  A.  Jay,  Rev.  James 
Milner,  Rev.  Cave  Jones,  Isaac  Collins,  Richard  R.  Ward, 
and  Charles  G.  Haines,  Esquires.  Mr.  Colden  was  Chairman 
of  the  Committee,  and  on  him  devolved  the  duty  of  drawing  up 
the  Report  on  the  Penitentiary  System.  On  his  election  to 
Congress,  he  found  himself  unable  to  attend  to  the  subject, 
from  the  pressure  of  public  and  professional  business,  and  Mr. 
Haines  was  selected  to  supply  his  place. 


(A) 

We  cannot  forbear  in  this  place,  to  quote  the  following  articles  from 
our  different  constitutions  of  this  country,  which  secure  to  our  citi- 
zens one  of  the  greatest  blessings  of  free  government.  Our  funda- 
mental principles  are  sound.  We  want  nothing  but  Criminal  Codes 
in  conformity  to  them,  and  the  proper  administration  of  those  codes, 
to  render  us  an  example  worthy  of  universal  and  Icisting  imitation. 

"  The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be 
by  jury,  and  such  trial  shall  be  held  in  the  state  where  the  said  crimes 
shall  have  been  committed ;  but  when  not  committed  within  any  state, 
the  trial  shall  be  held  at  such  place  or  places  as  the  Congress  may  by 
law  have  directed. 

"  No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infa- 
mous crime,  unless  on  a  presentment  or  indictment  of  a  grand  jury, 
except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the  militia, 
when  in  actual  service,  in  time  of  war  or  public  danger ;  nor  shall  any 
person  be  subject  for  the  same  offence  to  be  twice  put  in  jeopardy  of 
life  or  hmb ;  nor  shall  be  compelled,  in  any  criminal  case,  to  be  a  wit- 
ness against  himself,  nor  be  deprived  of  life,  liberty  or  property,  with- 
out due  process  of  law  ;  nor  shall  private  property  be  taken  for  pub- 
lic use,  without  just  compensation. 

"  In  all  criminal  prosecutions  the  accused  ^all  enjoy  the  right  to  a 
speedy  and  public  trial,  by  an  impartial  jury  of  the  state  and  district 
wherein  the  crime  shall  have  been  committed,  which  district  shall  have 
been  previously  ascertained  by  law,  and  to  be  informed  of  the  nature 
and  cause  of  the  accusation ;  to  be  confronted  with  the  witnesses 
against  kiqji ;  to  have  compulsory  process  for  obtaining  witnesses  in 
his  favor  ;  and  to  have  the  assistance  of  counsel  for  his  defence." 

ICoitstitution  of  the  United  States. 


2 


••  No  person  shall  be  held  to  answer  for  any  crime  or  offence,  until 
the  same  is  fully  and  plainly,  substantially  and  formally,  described  to 
him :  nor  be  compelled  to  accuse  or  furnish  evidence  against  him- 
self. And  every  person  shall  have  a  right  to  produce  all  proofs  that 
may  be  favourable  to  himself ;  to  meet  the  witnesses  against  him  face 
to  face ;  and  to  be  fully  heard  in  his  defence,  by  himself  and  counsel. 
\nd  no  person  shall  be  arrested,  imprisoned,  despoiled,  or  deprived 
of  his  property,  immunities,  or  privileges,  put  out  of  the  protection  of 
law,  exiled,  or  deprived  of  his  life,  liberty,  or  estate,  but  by  the  judg- 
ment of  his  peers,  or  the  law  of  the  land. 

"  No  person  shall  be  liable  to  be  tried,  after  an  acquital,  for  the 
same  crime  or  offence.  Nor  shall  the  legislature  make  any  law  that 
shall  subject  any  person  to  a  capital  punishment,  (excepting  for  the 
government  of  the  army  and  navy,  and  the  militia  in  actual  service,) 
without  trial  by  jury. 

"  In  criminal  prosecutions,  the  trial  of  facts  in  the  vicinity  where 
they  happen,  is  so  essential  to  the  security  of  the  life,  liberty,  and  es- 
tates, of  the  citizens,  that  no  crime  of  offence  ought  to  be  tried  in  any 
other  county  than  that  in  which  it  is  committed,  except  in  cases  of  gene- 
ral insurrection  in  any  particular  county,  when  it  shall  appear  to  the 
judges  of  the  superior  courts  that  an  impartial  trial  cannot  be  had  in 
ihe  county  where  the  offence  may  be  committed,  and  upon  their 
report,  the  legislature  shall  think  proper  to  direct  the  trial  in  the  nearest 
county  in  which  an  impartial  trial  can  be  obtained. 

"  All  penalties  ought  to  be  proportioned  to  the  nature  of  the  offence. 
No  wise  legislature  will  affix  the  same  punishment  to  the  crimes  of 
theft,  forgery,  and  the  like,  which  they  do  to  those  of  murder  and 
treason.  Where  the  same  undistinguished  severity  is  exerted  against 
all  offences,  the  people  are  led  to  forget  the  real  distinction  in  the 
crimes  themselves,  and  to  commit  the  most  flagrant  with  as  little  com- 
punction as  they  do  the  slightest  offences.  For  the  same  reason,  a 
multitude  of  sanguinary  laws  is  both  impolitic  and  unjust :  The  tnie 
design  of  all  punishments  being  to  reform  and  not  to  exterminate  man- 
kind." [Constitution  of  New-Hampshire, 

"  Every  subject  of  the  commonwealth  ought  to  find  a  certain  reme- 
ily,  by  having  recourse  to  the  laws,  for  all  injuries  or  wrongs  which  he\ 
may  receive,  in  his  person,  property,  or  character.   He  ought  to  ob- 


3 


tain  right  and  justice  freely,  and  without  being  obliged  to  purchase  it — 
completely,  and  without  any  denial — promptly,  and  without  delay- 
conformably  to  the  laws. 

"  No  person  shall  be  held  to  answer  for  any  crime  or  offence,  until 
the  same  is  fully  and  plainly,  substantially  and  formally,  described  to 
him ;  or  be  compelled  to  accuse  oi  furnish  evidence  against  himself. 
And  every  person  shall  have  a  right  to  produce  all  proofs  that  may  be 
favourable  to  him ;  to  meet  the  witnesses  against  him  face  to  face, 
and  be  fully  heard  in  his  defence,  by  himself  or  his  counsel,  at  his 
election.  And  no  person  shall  be  arrested,  imprisoned,  or  deprived 
of  his  property,  immunities  or  privileges,  put  out  of  the  pnotection  of 
the  law,  exiled,  or  deprived  of  his  life,  liberty,  or  estate,  but  by  the 
judgment  of  his  peers,  or  the  law  of  the  land. 

And  the  legislature  shall  not  make  any  law  that  shall  subject  any 
person  to  a  capital  or  infamous  punishment  (excepting  for  the  govern- 
ment of  the  army  and  navy)  without  trial  by  jury. 

"  In  criminal  prosecutions,  the  verification  of  facts,  in  the  vicinity 
where  they  happen,  is  one  of  the  greatest  securities  of  the  life,  liberty 
and  property  of  the  citizen. 

[^Constitution  of  Massachusetts. 

"  In  all  Criminal  prosecutions,  the  accused  shall  have  a  right  to  be 
heard,  by  himself  and  by  counsel;  to  demand  the  nature  and  cause  of 
the  accusation ;  to  be  confronted  by  the  witnesses  against  him ;  to 
have  compulsory  process  to  obtain  wtnesses  in  his  favor ;  and  in  all 
prosecutions  by  indictoient  or  information,  a  speedy  public  trial  by  an 
impartial  jury.  He  shall  not  be  compelled  to  give  evidence  against 
himself,  nor  be  deprived  of  Ufe,  liberty,  or  property,  but  by  due  course 
of  law.  And  no  person  shall  be  holden  to  answer  for  any  crime,  the 
punishment  of  which  may  be  death,  or  imprisonment  for  life,  imless 
on  a  presentment  or  an  indictment  of  a  grand  jury ;  except  in  the 
land  and  naval  forces,  or  in  the  militia,  when  in  actual  service,  in  time 
•f  war  or  public  danger.'' 

[Constittttion  of  Coanecticut. 

"  In  all  prosecutions  for  criminal  offences,  a  person  hath  a  right  to 
be  heard  by  himself  and  his  counsel ;  to  demand  the  cause  and  nature 
of  his  accusation  ;  to  be  confronted  with  the  witnesses ;  to  call  for 
''vidence  in  his  favour,  and  a  speedy  public  trial,  by  an  impartial  jury 


of  his  country;  without  the  unanimous  consent  of  which  jury,  he  can- 
not be  found  guilty  ;  nor  can  he  be  compelled  to  give  evidence  against 
himself;  nor  can  any  person  be  justly  deprived  of  his  liberty,  except 
by  the  laws  of  the  land,  or  the  judgment  of  his  peers. 

[Congtitutim  of  Vermont. 

"  And  it  is  further  ordained,  that  in  every  trial  or  impeachment,  or 
indictment  for  crimes  or  misdemeanor,  the  party  impeached  or  indicted 
shall  be  allowed  counsel,  as  in  civil  actions." 

[Constitution  of  New-York, 

"All  criminals  shall  be  admitted  to  the  same  privileges  of  wit- 
nesses and  counsel,  as  their  prosecutors  are  or  shall  be  entitled  to." 

[Comtitution  of  New-Jersey. 

"  In  all  criminal  prosecutions,  the  accused  hath  a  right  to  be  heard, 
by  himself  and  his  counsel ;  to  demand  the  nature  and  cause  of  the 
accusation  against  him  ;  to  meet  the  witnesses  face  to  face  ;  to  have 
compulsory  process  for  obtaining  witnesses  in  his  favour ;  and,  in  pro- 
secutions by  indictment  or  information,  especially,  public  trial  by  an  im- 
partial jury  of  the  vicinage.  That  he  cannot  be  compelled  to  give  evi- 
dence against  himself,  nor  can  he  be  deprived  of  his  life,  liberty,  or 
property,  unless  by  the  judgment  of  his  peers,  or  the  law  of  the  land.'* 

[Constitution  of  Pennsylvania. 

In  all  criminal  prosecutions,  the  accused  hath  a  right  to  be  heard, 
by  himself  and  his  counsel ;  to  be  plainly  and  fully  informed  of  the 
nature  and  cause  of  the  accusation  against  him  ;  to  meet  the  witnesses 
in  their  examination,  face  to  face;  to  have  compulsory  process  in  due 
time,  on  application  by  himself,  his  friends,  or  his  counsel,  for  obtain- 
ing witnesses  in  his  favour^  and  a  speedy  and  public  trial,  by  an  impar- 
tial jury.  He  shall  not  be  compelled  to  give  evidence  against  himself  j 
nor  shall  he  be  deprived  of  life,  liberty,  or  property,  unless  by  the 
judgment  of  his  peers,  or  the  law  of  the  land." 

[Constitutian  of  Delaware. 

"  In  all  criminal  prosecutions,  every  man  hath  a  right  to  be  inform- 
ed of  the  accusation  against  him  ;  to  have  a  copy  of  the  indictment  or 
charges  in  due  lime,  (if  required,)  to  prepare  for  his  defence  ;  to  be 


6 


allowed  counsel ;  to  be  confronted  with  the  witnesses  against  him,  to 
have  process  for  his  wittnesses;  to  examine  the  witnesses  for  and 
against  him,  on  oath  ;  and  to  a  speedy  trial,  by  an  impartial  jury,  with- 
out whose  unanimous  consent,  he  ought  not  to  be  found  guilty. 

"  No  man  ought  to  be  compelled  to  give  evidence  against  himself, 
in  a  court  of  common  law,  or  in  any  other  court,  but  in  such  cases  as 
have  been  usually  practised  in  this  state,  or  may  hereafter  be  directed 
by  the  legislature. 

*'  No  freeman  ought  to  be  taken,  or  imprisoned,  or  disseized  of  his 
freehold,  liberties ,  or  privileges,  or  outlawed,  or  exiled,  or  in  any  man- 
ner destroyed,  or  deprived  of  his  life,  liberty  or  property,  but  by  the 
judgment  of  his  peers,  or  by  the  law  of  the  land. 

"  Excessive  bail  ought  not  to  be  required,  nor  excessive  fines  impo- 
sed, nor  cruel  and  unusual  punishment  inflicted  by  the  courts  of  law.'' 

[^Comtitution  of  Maryland. 

"  In  all  criminal  prosecutions,  every  man  hath  a  right  to  be  inform- 
ed of  the  accusation  against  him,  and  to  confront  the  accusers  and 
witnesses  with  other  testimony,  and  shall  not  be  compelled  to  give 
evidence  at;ainst  himself. 

"  No  freeman  shall  be  put  to  answer  any  criminal  charge,  but  by 
indictment,  presentment,  or  impeachment. 

"  That  no  freeman  shall  be  convicted  of  any  crime,  but  by  the 
unanimous  verdict  of  a  jury  of  good  and  lawful  men,  in  open  court,  as 
heretofore  used. 

"  Excessive  bail  should  not  be  required,  nor  excessive  fines  impo- 
sed, nor  cruel  or  unusual  punishment  inflicted." 

\^Constitution  of  North-Carolina. 

"  Within  five  years  after  the  adoption  of  this  constitution,  the  body 
of  our  laws,  civil  and  criminal,  shall  be  revised,  digested,  and  arranged 
under  proper  heads,  and  promulgated  in  such  manner  as  the  legislature 
may  direct ;  and  no  person  shall  be  debarred  from  advocating  or  de- 
fending his  cause  before  any  court  or  tribunal,  either  by  himself  or 
counsellor,  or  both." 

[^Constitution  of  Georgia. 

"  In  all  criminal  prosecutions,  the  accused  shall  have  a  right  to  be 
lieard,  by  himself  or  counsel :  of  demanding  the  nature  and  cause  of  die 


6 


accusation  against  hi ra :  of  meeting  the  witnesses  face  to  face:  ofhav- 
ing  compulsory  process  for  obtaining  witnesses  in  his  favour ;  and,  in 
prosecution  by  indictment  or  information,  a  speedy  public  trial  by  an 
impartial  jury  of  the  vicinage ;  nor  shall  he  be  compelled  to  give  evi- 
dence against  himself. 

All  prisoners  shall  be  bailable  by  sufficient  securities,  unless  for  ca- 
pital offences,  where  the  proof  is  evident  or  presumption  great ;  and 
the  privileges  of  the  writ  of  habeas  corpus  shall  not  be  suspended,  un- 
less when  in  cases  of  rebellion  or  invasion  the  public  safety  may  re- 
quire it." 

[_Constitution  of  Louisiana. 

.  In  all  criminal  prosecutions,  the  accused  hath  a  right  to  be  heard  by 
himself  and  counsel ;  to  demand  the  nature  and  cause  of  the  accusation 
against  him  ;  to  meet  the  witnesses  face  to  face  :  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor ;  and  in  prosecutions  by 
indictment  or  information,  a  speedy  public  trial,  by  an  impartial  jury 
of  the  vicinage,  that  he  cannot  be  compelled  to  give  evidence  against 
himself,  nor  can  he  be  deprived  of  his  life,  liberty,  or  property,  unless  by 
the  judgment  of  his  peers,  or  the  law  of  the  land. 

No  person  shall,  for  any  indictable  offence,  be  proceeded  against  cri- 
minally by  information,  except  in  cases  arising  in  the  land  or  naval  for- 
ces, or  the  militia,  when  in  actual  service,  in  time  of  war  or  public  dan- 
ger, by  leave  of  the  court,  for  oppression  or  misdemeanor  in  office.  So 
person  shall,  for  the  same  offence,  be  twice  put  in  jeopardy  of  his  life  ; 
or  limbs,  nor  shall  any  man's  property  be  taken  or  applied  to  public 
use  without  the  consent  of  his  representatives,  and  without  just  com* 
pensation  being  previously  made  to  him." 

[Constitution  of  Kentucky. 

"  No  person  arrested  or  confined  in  gaol  shall  be  treated  with  unne. 
cessary  rigor,  or  be  put  to  answer  any  criminal  charge,  but  by  present- 
ment, indictment,  or  impeachment. 

"In  all  criminal  prosecutions,  the  accused  hath  a  right  to  be  heard  by 
himself  and  counsel,  to  demand  the  nature  and  cause  of  the  accusation 
against  him,  and  to  have  a  copy  thereof;  to  meet  the  witnesses  face  to 
face ;  to  have  compulsory  process  for  obtaining  witnesses  in  his  favour ; 
and  in  prosecutions  by  indictment  or  presentment,  a  speedy  public  trial 
by  an  impartial  jury  oftlie  county  or  district  in  which  the  offence  shall 


7 


iave  been  committed,  and  shall  not  be  compelled  to  give  evidence 
ag;iinst  himself — nor  shall  he  be  twice  put  in  jeopardy  for  the  same  of- 
fence." 

[Constitution  of  Ohio. 

"  No  freeman  shall  be  taken,  or  imprisoned,  or  disseized  of  his  free- 
hold, liberties,  or  privileges,  or  outlawed,  or  exiled,  or  in  any  manner 
destroyed,  or  deprived  of  his  life,  liberty,  or  property,  but  by  the  judg- 
ment of  his  peers,  or  the  law  of  the  land. 

In  all  criminal  prosecutions,  the  accused  hath  a  right  to  be  heard  by 
himself  and  his  counsel,  to  demand  the  nature  and  cause  of  the  accu- 
sation against  him,  and  to  have  a  copy  thereof ;  to  meet  the  witnesses 
face  to  face ;  to  have  compulsory  process  for  obtaining  witnesses  in  his 
&vour-,  and,  in  prosecutions  by  indictment  or  presentment,  a  speedy 
pubUc  trial,  by  an  impartial  jury  of  the  county  or  district  in  which  the 
crime  shall  have  been  committed  ;  and  shall  not  be  compelled  to  give 
evidence  against  himself. 

No  person  shall,  for  the  same  offence,  be  twice  put  in  jeopardy  of  his 
Hfe  or  limbs." 

[Constitution  of  Tennessee. 

"  In  all  criminal  prosecutions,  the  accused  hath  a  right  to  be  heard 
by  himself  and  counsel :  to  demand  the  nature  and  cause  of  the  accu- 
sation :  to  be  cobfronted  by  the  witnesses  against  him  :  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor,  and,  in  all  prose- 
cutions by  indictment  or  information,  a  speedy  public  trial,  by  an  im- 
partial jury  of  the  county ;  that  he  cannot  be  compelled  to  give  evi- 
dence against  himself,  nor  can  he  be  deprived  of  his  life,  liberty,  or 
property,  but  by  due  course  of  law." 

[Constitution  of  Mississij,pi. 

"  In  all  criminal  prosecutions,  the  accused  hath  a  right  to  be  heard 
by  himself  and  counsel ;  to  demand  the  nature  and  cause  of  the  accu- 
sation against  him,  and  to  have  a  copy  thereof;  to  meet  the  witnesses 
face  to  face  ;  to  have  compulsory  process  for  obtaining  witnesses  in  his 
favor ;  and,  in  prosecutions  by  indictment  or  presentment,  a  speedy 
public  trial,  by  an  impartial  jury  of  the  county  or  district  in  which  the 
offence  shall  have  been  committed,  and  shall  not  be  compelled  to  give 


8 


eviJence  against  himself,  nor  sliall  be  twice  put  in  jeopardy  for  the 
same  oflence." 

[^Coiistitution  of  Indiana. 

"  In  all  criminal  prosecutions,  the  accused  hath  a  right  to  be  heard 
by  himself  and  counsel ;  to  demand  the  nature  and  cause  of  the  accu- 
sation against  him  ;  to  meet  the  witnesses  face  to  face ;  to  liave  com>' 
pulsory  process  to  compel  the  attendance  of  witnesses  in  his  favor;  j 
and,  in  prosecutions  by  indictment  or  information,  a  speedy  public  trial 
by  an  impartial  jury  of  the  vicinage  ;  and  that  he  shall  not  be  compel- 
Je«l  to  give  evidence  against  himself." 

[Constitution  of  Illinois. 

-aillll^llllie- 

LETTERS. 

Thb  following  letters  will  be  perused  with  deep  interest.  They  come  j 
from  persons  well  known  to  the  American  community.  They  com-  i 
bine  latent  observation  and  public  spirit,  and  reflect  great  and  last- 
ing credit  on  the  zeal  of  the  authors.  It  is  indeed  to  be  regretted, 
that  persons  in  the  United  States,  capable  of  improving  our  laws 
and  our  institutions,  are  too  frequently  so  little  disposed  as  they  cire, 
to  place  the  result  of  their  reflections  before  the  nation,  or  to  inves- 
tigate subjects  vitally  connected  with  the  happiness  and  prosperity 
of  the  coiintry.  Would  the  most  capable  and  distinguished  men, 
in  the  different  states,  compare  the  constitutions  and  municipal  laws 
of  their  respective  members  of  the  confederacy,  and  borrow  and 
renounce  whatever  reason,  time  and  experience  dictate,  great  and 
salutary  benefits  would  result  from  the  policy. 

The  communications  here  inserted,  were  written  in  answer  to  the 
following 

CIRCULA.R : 

Sir, 

The  undersigned,  having  been  appointed  a  Committee,  in  tJie 
City  of  New- York,  to  prepare  a  General  Report  on  the  results  andi 
tendency  of  the  Penitentiary  System,  feel  a  sincere  anxiety  to  pro- 1 
ceed  under  circumstances  the  best  calculated  to  give  a  clear  and  satis- 
factory termination  to  their  investigations.    They  consider  the  duty 


9 


confided  to  their  fidelity  and  research,  as  one  eminently  interesting  to 
the  deepest  interests  of  society.  The  subject  of  their  inquiry  is  iden- 
tified with  the  Penal  Jurisprudence  of  the  nation;  and  the  final  legis- 
lative decision  that  must  be  pronounced  upon  it,  will  determine,  for 
generations,  the  spirit  of  mildness  or  severity,  that  is  to  mark  the  ad- 
ministration of  criminal  justice. 

It  is  not  to  be  concealed,  that  there  is  much  diversity  of  opinion,  in 
difierent  sections  of  the  United  States,  as  to  the  soundness  of  the  Peni- 
tentiary System  : — by  Penitentiary  System,  we  refer  to  those  laws 
which  consign  convicts  to  confinement  and  labour — the  construction 
and  internal  regulations  of  our  state  prisons — and  the  designed  reform 
and  penitence  of  the  criminals,  there  confined.  While  a  great  portion 
of  the  intelligent  and  well-informed  feel  confident  that  this  system  can 
be  so  improved  and  regulated  as  to  answer  the  original  designs  of  the 
institution  ;  others  advance  the  doctrine,  that  it  is  founded  on  principles 
that  are  false  and  erroneous,  and  that  a  more  rigid  treatment  of  the 
perpetrators  of  crimes  must  be  embraced.  Some  defend  the  expedien- 
cy of  resorting  to  capital  punishments,  to  transportation,  or  the  chain, 
for  the  correction  of  many  crimes  whicJi  now  constitute  the  higher  de- 
grees of  felony. 

In  this  state  of  doubt  and  conflict  in  the  public  mind,  it  is  to  be  ar- 
dently hoped,  that  we  may  investigate  and  reflect,  and  arrive  to  a  cor- 
rect standard  of  conviction.  We  know  of  no  better  method  to  pursue, 
than  to  collect  facts  and  solicit  aid  and  liglit  from  some  of  the  distin- 
guished men  of  the  nation.  In  appealing  to  their  superior  intelligence, 
judgment  and  reflection,  we  feel  sensible  of  taking  no  ordinary  liberty ; 
but  the  interests  which  we  are  labouring  to  promote,  are  public  inte- 
rests— equally  pertainiog  and  equally  important,  to  all  classes  and  sec- 
tions of  the  great  American  community. 

We  therefore.  Sir,  respectfully  address  the  following  inquiries  to 
you,  with  an  assurance,  that  whether  you  answer  all  or  any  of  them, 
we  shall  appreciate  your  kindness  with  sentiments  of  gratitude. 
J.  What  has  been  the  effect  of  the  Penitentiary  System,  in  the  United 

States,  to  suppress  crimes,  as  compared  with  that  of  the  laws  which 

existed  in  relation  to  public  offences,  prior  to  the  adoption  of  this 

tyttem  ? 

IT.  Has  the  Penitentiary  Sysfem  failed  to  answer  the  ends  of  its  in- 
stitution : — and,  if  no,  to  what  is  the  failure  to  be  attributed  ? 

B 


10 


III.  Is  it  politic  and  necessary  to  abandon  the  Penilenliary  System  ; 

or,  it  it  better  to  attempt  its  improvement  ? 
IF.  If  the  Penitentiary  System  is  to  be  abandoned,  to  what  shall  we 

resort  as  a  substitute? 

V.  Would  it  better  promote  the  ends  of  justice,  and  contribute  to  pub- 
lic security,  to  adopt  capital  punishments,  to  any  greater  extent  than 
the  present  laws  embrace  ? 

VI.  Would  it  be  politic  and  practicable  to  transport  criminals  ;  or, 
teould  it  be  consistent  with  the  nature  of  our  institutions,  and  pre- 
vent crimes,  and  reform  convicts,  to  doom  them  to  the  chain  ? 
The  feeling  and  anxiety  which  are  excited  in  England,  and  in  other 

parts  of  Europe,  at  the  present  moment,  on  the  efficacy  or  inefBcacy 
of  the  Penitentiary  System  ;  the  pressing  letters  continually  received 
by  us,  for  the  fruits  of  the  experience  and  observation  of  this  country ; 
— and  the  stress  which  is  laid  on  the  successful  adoption  of  a  mild 
Criminal  Code  in  the  United  States,  by  many  of  the  first  characters  of 
the  old  world — form  an  additional  inducement  for  us  to  treat  the  sub- 
ject of  this  letter  with  uncommon  attention,  and  to  solicit  your  opinion. 

When  our  Report  is  published,  we  shall  do  ourselves  the  pleasure  to 
transmit  a  copy  to  you. 

CADWALLADER  D.  COLDEN,  7  . 
P.  A.  JAY,  I  I 

JAMES  MILNOR,  >  | 

THOMAS  EDDY,  J  J 

CH.  G.  HAINES,  \ 


LETTERS  FROM  THE  STATE  OF  PENNSYLVANIA. 

J%e  Honorable  JOSEPH  HOPKINSON,  to  the   Committee  of 
Correspondence. 

BORDENTOWN,  Oct.  10,  1820. 

GENTLEMEN, 

I  have  received  your  Circular,  written  for  the  purpose  of  collect- 
ing information  "  on  the  results  and  tendency  of  the  Penitentiary  Sys- 
tem," and  feel  it  a  duty  to  reply  to  an  application  so  fully  entitled  to 
respect,  although  I  do  not  hope  to  add  any  thing  to  the  facts  and  opin- 
ions which  will  be  in  your  possession,  from  other  sources,  on  this  im- 
portant subject.    From  the  first  experiment  of  this  system  in  Pennsyl- 


11 


vama,  1  have  leared  that,  leaving  one  extreme,  sliocking  for  its  cruelty 
and  carelessness  of  human  life,  we  should  pass  to  another,  inadequate 
Vo  produce  the  proper  and  salutary  effect  intended  by  human  pnn- 
ishnients — the  safety  of  society.  The  experience  of  thirty  years  has 
confirmed,  in  my  mind,  these  apprehensions,  and  satisfied  me,  that  we 
have  vibrated  too  far  on  the  side  of  lenity,  and  that  some  change  is 
necessary  for  security  against  the  perpetration  of  crimes ;  and  for  re- 
lieving us,  too,  from  the  great  and  growing  expense  of  the  present 
system.  The  expectation  that  the  aggregate  labour  of  the  convicts 
would  be  sufficient  for  their  aggregate  support,  or  rather  for  the  main- 
tenance of  the  institution,  has  entirely  failed  in  Pennsylvania.  There 
is  no  doubt  this  subject  is  full  of  difficulties  ;  and  it  is  not  to  be  won- 
dered, that  the  true  point  should  not  have  been  struck  at  the  first  at- 
tempt ;  nor  that  good  and  humane  men,  recoiling  from  a  system  of 
blood,  should  have  fallen  into  one  of  excessive  indulgence  to  criminals. 
The  plan  adopted  by  New- York,  for  ascertaining  the  just  measure  of 
punishment,  which  you  are  now  executing,  promises  to  bring  us  as 
near  to  perfection,  in  this  most  interesting  matter,  as  can  be  attained. 
To  fix  a  precise  standard,  which  shall  afford,  in  all  cases,  the  neces- 
sary protection  to  the  community,  without  undue  severity  to  offenders, 
is  impossible  ;  but,  inasmuch  as  the  safety  of  the  whole,  or,  at  least, 
ilie  greater  and  honest  part  of  the  whole,  is  the  end  to  be  attained,  ii 
should  be  the  principal  object  of  attention  ;  and,  of  course,  the  condi- 
tion of  those  who  make  themselves  obnoxious  to  the  penal  laws,  must 
be  secondary  considerations.  Self-detence,  or  a  protection  from  wrong, 
being  admitted  to  be  the  ground  of  justification  of  human  punisli- 
ments,  it  must  be  lawful  and  right  to  extend  them  as  far  as  the  attain- 
ment of  their  object  shall  require. 

I  beg  you  to  pardon  these  general  introductory  remarks ;  and  will 
proceed  to  offer  the  answers,  which  occur  to  me,  to  the  specified  ques- 
tions contained  in  your  letter ;  premising  that,  as  I  have  no  means 
here  of  referring  to  records  and  documents,  I  can  only  give  the  general 
results  of  my  observation. 

L  What  has  been  the  effect  of  the  Penitentiary  System  in  the  Uni- 
ted States,  to  suppress  crimes,  compared  with  that  of  the  laws  which 
existed  in  relation  to  public  offences,  prior  to  the  adoption  of  this  sys- 
tem ? 

In  considering  this  question,  we  should  bear  in  mind,  that  the  sj-s- 


12 


tern  of  pnnishment  is  not  the  only  cause  whicli  produces  the  increase 
or  suppression  of  crimes ;  and,  of  course,  that  any  comparison  of  the 
number  before  and  after  the  introduction  of  the  penitentiary  plan, 
must  not  be  exclusively  referred  to  the  operation  of  that  system. 
The  state  of  the  country,  and  the  condition  of  the  people,  greatly  in- 
fluence the  production  of  crimes.  This  is  particularly  to  be  attended 
to  in  the  United  States,  whose  situation  changed  so  rapidly  and  mate- 
rially in  a  few  years:  and  this  change  from  general  poverty  and  de- 
pression, to  universal  prosperily,  began  soon  after  the  adoption  of  the 
new  penal  system  in  Pennsylvania,  and  especially  applies  to  her  expe- 
rience of  it.  Again — there  are  certain  crimes  which,  from  their  na- 
ture, can  hardly  be  supposed  to  be  greally  afiectcd  by  lliS  jiunishment 
which  will  follow  them  ;  and  their  increase  or  diminution  must  depend 
upon  other  causes.  Of  this  class  is  murder,  always  committed  from 
motives  or  impulses  much  above  any  consideration  of  consequences : 
and,  generally,  those  offences  which  originate  in  the  sudden  excitement 
of  violent  and  ungovernable  passions.  A  murderer  (in  my  view)  is 
put  to  death,  not  to  prevent  another  man  from  committing  the  same 
oflence,  but  that  he  may  not  repeat  it.  If  penal  laws,  or  rather  the 
degree  of  punishment  inflicted  by  them,  have  any  considerable  effect 
on  the  prevention  of  crimes,  it  must  be  of  those  which  are  committed 
with  deliberation,  and  a  certain  degree  of  calculation  of  consequences. 
How  then  does  the  comparison  stand,  in  relation  to  such  offences,  be- 
fore and  after  the  adoption  of  the  Penitentiary  System  ? — and  is  any 
change  that  has  taken  place  to  be  attributed  to  the  operation  of  that 
system,  or  some  other  cause  ?  I  can  speak  only  of  the  experience  of 
Pennsylvania,  where  the  new  system  was. introduced  in  the  year  1790, 
or  thereabout  From  the  observation  I  have  made,  I  would  say,  that 
since  that  period,  there  has  been  a  visible  diminution  of  the  more  atro- 
cious crimes  against  property,  such  as  robberies  and  burglaries ;  but 
an  immense  increase  of  smaller  larcenies  ;  and  yet  neither  the  one  nor 
the  other  may  be  attributable  to  the  change  of  punishment.  As  to 
the  decrease  of  those  higher  offences,  that  bespeak  a  greater  degree 
of  depravity  and  desperation,  we  should  remember  that  the  peace 
which  followed  the  Revolutionary  war,  let  loose  upon  society  thousands 
of  pennyless  and  desperate  men,  familiar  with  danger,  who  had  long 
been  unused  to  the  habits  of  industry  and  care,  necessary  for  their  owr 
support,  and  many  of  whom  could  not  And  employment  even  if  dispe- 


18 


sed  to  seek  it.  In  short,  the  country  was  over-run  with  the  idleness 
.ind  vices  of  a  disbanded  army  ;  and  the  general  poverty  of  the  peo- 
ple, with  the  unusual  suspension  of  business,  made  it  impossible  t« 
find  labour  for  those  who  were  willing  to  live  honestly.  We  see  here 
a  productive  and  sufficient  source  of  crimes  prior  to  the  year  '90. 
The  adoption  of  the  Federal  Constitution,  followed  up  by  the  troubles 
of  Europe,  introduced  to  us  a  supply  of  wealth  and  spirit  of  enter- 
prise, with  a  consequent  demand  for  labour,  that  offered  the  most  libe- 
ral and  flattering  temptations  to  industry  of  every  description,  and  has 
been,  in  my  opinion,  the  eflScient  cause  of  the  diminution  of  the  more 
dangerous  and  desperate  criminals.  I  cannot  believe  that  a  burglar 
or  highwayman  would  give  over  his  trade,  and  betake  himself  to  la- 
bour, because  his  punishment  was  changed  from  the  gallows  to  the 
gaol,    to  be  fed  and  cloatked  as  the  law  directs." 

The  increase,  for  some  years  past,  of  common  larcenies,  and  lesser 
breaches  of  the  penal  laws,  in  the  city  and  county  of  Philadelphia, 
has  been  enormous.  Until  the  year  1799,  but  four  days  of  the  quar- 
terly sittings  of  the  court  of  Common  Pleas  and  Sessions  were  allowed, 
for  the  transaction  of  criminal  business  ;  and  they  were  found  suflS- 
cient  for  the  disposal  of  all  the  cases  ready  for  hearing.  At  present, 
and  for  some  years  past,  about  two  weeks  are  occupied  in  the  city, 
and  as  many  in  the  county,  with  the  criminal  business,  below  the  juris- 
diction of  a  court  of  Oyer  and  Terminer,  which  is  also  held,  from 
time  to  time,  as  occasion  requires.  A  reference  to  the  records  of  the 
courts  will  show  the  increase  of  the  number  of  indictments  and  recog- 
rozances  in  every  year.  Such  is  the  fact ;  but  we  cannot,  with  certain- 
ty, trace  the  increase  to  the  Penitentiary  System ;  inasmuch  as  the 
great  accession  to  the  population  of  the  district,  must,  in  part,  account 
for  it.  Still,  I  think,  the  system,  as  it  has  been  executed,  is  not  guilt- 
less. The  manner  and  extent  of  its  offending  belong  more  properly 
to  the  second  enquiry. 

n.  Has  the  Penitentiary  System  failed  to  answer  the  ends  of  its  in- 
stitution ;  and,  if  so,  to  what  is  the  failure  to  be  attributed  ?  I  think 
it  lias  failed  in  some  very  important  particulars.  It  has,  certainly, 
the  merit  of  humanity  ;  it  graduates  punishments  by  the  scale  of  crim- 
inality, with  more  justice  than  was  done  when  so  many  crimes,  widely 
'iiffering  in  their  danger  to  society,  and  their  moral  atrocity,  were  fol- 
lowed indiscriminately  with  death.    But  it  has  failed  either  to  reforjm 


14 


convicts  or  prevent  crimes.  We  all  remember  that  the  original  friends 
and  advocates  of  the  system,  entertained  high  hopes  of  effecting  the 
reformation  of  offenders,  by  its  mildness  and  discipline.  I  presume 
this  hope  is  now  abandoned,  as  experience  has  proved  it  to  be  visiona- 
ly.  Of  the  thousands  that  have  fallen  under  the  penitentiary  treat- 
ment, how  many  h^ve  been  reformed  by  it  ?  Is  there  one  clear,  well- 
authenticated  case  ?  Hypocrites,  and  pretenders  to  feform,  have  been 
innumerable ;  who  have  played  their  tricks  upon  credulous  inspectors 
of  prisons;  obtained  their  liberty,  and  returned  to  their  old  vocation. 
So  far  from  reformation  having  been  the  effect  of  the  system,  as  here- 
tofore practised,  one  of  its  worst  evils  is,  that  by  throwing  a  crowd  of 
criminals  together,  necessarily  of  different  degrees  of  depravity,  they 
become  equally  wicked  and  corrupt,  and  skilled  in  the  various  contri- 
vances to  commit  crimes,  and  elude  justice.  It  is  a  college  for  the 
education  of  men  to  prey  upon  society.  A  novice,  who,  if  kept  from 
company  worse  than  himself,  might  have  been  reclaimed  from  his  first 
attempts  is  here  associated  with  old,  hardened  and  skillful  offenders  ; 
he  hears  with  envy  and  admiration,  the  stories  of  their  prowess  and 
dexterity  ;  his  ambition  is  roused,  his  knowledge  extended  by  these 
recitals,  and  every  idea  of  repentance  is  scorned ;  every  emotion  of 
virtue  extinguished.  Instances  of  this  sort  are  numerous,  both  in  the 
United  States  and  in  England.  1  consider,  then,  this  herding  of  crim- 
inals together,  as  a  vital  defect  in  the  system.  Another  cause  of  failure 
may  be  found  in  the  excess  of  lenity  and  indulgence  shewn  to  convicts, 
in  the  manner  of  the  execution  of  the  sentence  of  the  law  ;  or  rather 
in  the  disregard  of  that  sentence  ;  making  their  condition  in  sickness 
and  in  health  more  tolerable  and  indeed  comfortable  than  nine  tenths 
of  the  honest,  labouring  poor.  One  is  put  to  sweep  the  gaol  or  gaol 
yard,  and  that  is  a  compliance  with  his  sentence  to  hard  labour ;  an- 
other makes  soup  or  boils  potatoes  ;  and  another  is  placed  at  a  desk, 
to  keep  books  and  accounts,  as  an  ordinary  clerk.  All  this  is  done 
under  the  direction  and  patronage  or  favouritism  of  Inspectors  of  the 
prison,  who  take  upon  themselves,  in  this  way,  to  dispense  with  the 
judgment  of  the  court.  The  least  pretence  of  sickness  is  an  excuse 
from  labour;  and  the  work  done  by  a  convict  is,  at  no  time,  much  more 
than  half  of  what  a  common  labourer  would  peiform.  It  is  idle  to 
talk  of  the  disgrace  and  shame  forming  any  part  of  the  punishment; 
nothing  is  considered  by  these  men  but  the  confinement  and  work; 


15 


mill,  at  [ircsent,  tlic  first  is  rendered  tolerable,  if  not  agreeable,  by 
society  exactly  suited  to  their  taste ;  and  the  last  is  so  lightly  impo- 
sed as  to  be  rather  a  healthy  recreation,  than  a  dreaded  punishment. 

A  third  cause  of  failure  of  the  expected  effects  of  the  system,  at 
least  in  Pennsylvania,  is,  in  my  opinion,  the  large  and  unnecessary 
powers  given  to  the  inspectors  of  the  prison,  already  hinted  at,  amount- 
ing in  some  instances,  (such  as  have  been  mentioned,)  to  an  entire 
abrogation  of  the  sentence  of  the  law.  The  inspectors  are,  generally, 
men  of  high  respectability ;  but  their  humanity,  and  I  may  say,  some- 
times their  caprice,  render  them  liable  to  very  gross  impositions,  by 
the  artifice  and  management  of  those  with  whom  they  have  to  deaL 
They  are  thus  too  frequently  led  to  interfere  with  the  strict  and  due 
execution  of  the  law  ;  sometimes  in  the  shape  of  general  regulations  ; 
sometimes  by  particular  favour  to  individuals  they  undoubtedly 
think  deserving  ;  but  most  of  all  by  their  recommendations  to  pardon, 
founded  merely  on  the  apparent  or  assumed  repentance  of  the  crimi- 
nal, (of  the  sincerity  of  which  he  cannot  judge,)  or,  what  is  called 
his  good  behaviour  in  gaol ;  and  having  no  reference  to  the  nature  or 
circumstances  of  his  crime.  This  brings  me  to  a  fourth  cause  of  the 
failure  of  the  system,  viz  :  The  indiscreet,  thoughtless  exercise  of  the 
power  of  pardoning.  This  strikes  at  the  vital  principle  of  the  system. 
It  was  a  capital  argument  with  the  friends  of  mild  punishments,  that  you 
would  gain  by  their  certainty  more  than  you  would  lose  in  severity  ; 
that  laws  cannot  be  executed  which  shock  the  good  feelings  and  com- 
mon sense  of  mankind  ;  that  juries  would  not  convict  when  they  could, 
by  any  possibility,  evade  the  evidence ;  and  that  were  convictions 
obtained,  pardons  must  be  constantly  interposed  to  prevent  the  inflic- 
tion of  a  sanguinary  and  disproportionate  punishment.  All  this 
was  to  find  a  remedy  in  the  Penitentiary  System,  under  which  con- 
dign punishment  was  infallibly  to  follow  the  detection  of  the  offender. 
The  facility  of  granting  pardons,  most  generally  on  the  recommenda- 
tion of  inspectors,  but  often  of  persons  having  no  knowledge  either  of 
the  criminal  or  his  crime,  has  greatly  impaired  the  foundation  of  the 
system ;  and  deprived  us  of  the  uses  that  might  have  been  derived  from 
it  under  a  more  rigorous  execution  of  its  provisions.  The  experiment 
at  least  would  have  been  more  fair  and  satisfactory.  Except  in  very 
rare  and  extraordinary  cases,  a  pardon  should  be  founded  only  on  cir- 
'"umstances  of  excuse  or  alleviation  attending  the  commission  of  the 


13 


offence,  but  insufTicieut  to  \v<u-i  ant  a  legal  acquittal ;  or  on  the  discove'* 
ry  of  facts  unknown  at  the  trial,  which  would  probably  have  produced 
an  acquittal ;  but  to  make  the  good  conduct  of  a  convict,  under  the 
sentence  of  the  law,  a  reason  for  remitting  the  sentence,  is  not  only 
unjust,  as  it  destroys  the  relation  that  should  subsist  between  the 
crime  and  its  punishment,  and  impolitic  as  it  affects  the  general  opera- 
tion of  the  law  ;  but  opens  a  door,  and  holds  out  a  premium  for  fraud 
and  hypocrisy,  wliicii  all  the  sagacity  and  care  of  ^the  inspectors  can- 
not guard  against. 

III.  Is  it  politic  cind  necessary  to  abandon  the  Penitentiary  System  ; 
or  is  it  better  to  attempt  its  improvement  ?  I  would  not  abandon  the 
system;  but  attempt  its  improvement;  by  limiting  the  power  of  the  in- 
spectors, on  the  treatment  of  the  prisoners,  so  as  to  prevent  any  mate- 
rial evasion  of  the  sentence ;  by  checking  the  practice  of  pardoning  ; 
and  most  of  all,  by  substituting  solitary  coiifinement  (for  shorter  peri- 
ods if  necessary)  in  the  place  of  the  present  mode  of  assembling  the 
convicts  in  a  common  yard  or  workshop ;  and  putting  a  dozen  or  twen- 
ty of  them  in  the  same  room  to  sleep.  Work  should  be  an  indulgence, 
or  amelioration  of  the  punishment ;  the  most  atrocious  offenders  should 
be  confined  separately,  and  have  nothing  to  do.  This  change  might 
be  applied  only  to  crimes  of  a  high  grade ;  and  petty  offenders  dealt 
with  as  heretofore.  By  this  means,  the  punishment  of  the  most  despe- 
rate and  abandoned  would  become  a  terror  to  them  ;  and  the  evils 
avoided  that  arise  from  the  communication  between  the  convicts,  which 
now  unavoidably  takes  place.  Young  offenders,  kept  from  the  more 
experienced,  would  have  no  means  of  improving  their  skill  in  iniquity, 
or  hardening  their  hearts  against  repentance ;  and,  if  reformation  can 
be  hoped  for,  under  any  circumstances,  it  must  be  when  the  culprit  is 
left  to  his  own  reflections, — his  conscience  his  only  companion  ;  and 
separated  from  those  who  would  confirm  his  evil  propensities,  and  ri- 
dicule his  attempts  or  intentions  to  reform  them. 

IV.  The  answer  of  the  third  inquiry,  renders  a  consideration  of  this 
unnecessary. 

V.  Would  it  better  promote  the  ends  of  justice,  and  contribute  to 
public  security,  to  adopt  capital  punishment  to  a  greater  extent  than 
the.  present  laws  embrace  ? — In  Pennsylvania,  murder  of  the  first  de- 
gree only,  is  punished  with  death ;  and  I  am  satisfied  it  would  not  be 
politic  to  attempt  to  extend  this  punishment  further  in  that  state.  It 
is  difficult  to  execute  the  law  as  it  now  stands ;  and  clear  cases  of  mur-i 


ir 


der  of  tlie  fust  degree,  are  frequently  pronounced  by  Juries,  to  be  of 
the  second,  merely  to  evade  the  sentence  of  death.  For  my  own  part, 
I  confess,  that,  while  I  would  not  punish  any  depredator  upon  property 
with  a  forfeiture  of  life,  there  is  one  other  crime  I  would  make  capital, 
I  mean  Rape.  Of  course  I  presume  a  case  clearly  made  out  and  pro- 
ved, in  all  its  circumstances,  to  the  satisfaction  of  the  court  and  jury. 
As  to  the  facility  of  making  the  charge,  and  the  difficulties  of  defence, 
they  are  matters  to  be  considered  at  the  trial ;  but  when  a  conviction  is 
made,  on  undoubted  testimony,  I  do  not  see  why  it  should  not  be  follow- 
ed with  the  utmost  severity  of  the  law,  whatever  it  may  be.  In  many 
cases  the  victim  of  the  brutal  effender  would  have  been  less  injured  by 
the  loss  of  life  ;  and  her  friends  would  have  had  a  surer  consolation, 
than  under  this  violence  to  her  person,  from  which  no  purity  of  mind 
can  redeem  her ;  but  which  must  destroy  every  hope  of  happiness  in  this 
world. 

VI.  Would  it  be  politic  and  practicable  to  transport  criminals;  co- 
would  it  be  consistent  with  the  nature  of  our  institutions,  and  prevent 
crimes,  and  reform  convicts,  to  doom  them  to  the  chain  ?  As  to  trans- 
portation, I  do  not  see  how  it  is  practicable.  How  can  it  be  done  by 
an  individual  state  ?  Can  a  state  obtain  a  distant  territory ;  a  proper 
place ;  or  provide  the  means  of  transporting  the  convicts  to  it,  and  of 
confining  them  to  it,  and  supporting  them  there  ?  It  is  clearly  impos- 
sible that  each  and  every  state  can  have  a  separate  deposit ;  and  it  is 
almost  equally  difficult  for  them  jointly  to  fix  on  one;  to  apportion  the 
expense  of  transportation ;  of  keeping  up  the  establishment ;  and  to 
agree  upon  the  appointment  of  the  necessary  officers,  and  force  to  be- 
kept  there,  and  the  rules  and  regulations  which  should  govern  the  set- 
tlement. As  to  the  government  of  the  United  States,  if  willing  to  vol- 
unteer its  services,  and  undertake  the  trouble,  expense,  and  superinten- 
dence of  such  a  settlement,  for  the  whole,  it  seems  to  me  to  be,  at  least, 
doubtful  whether  they  have  the  power  to  appropriate  the  treasury  of  the 
United  States  in  this  way.  Constitutional  power  is  sharply  inquired 
into  when  it  puts  its  hand  into  the  purse  of  the  nation.  I  do  not  ex- 
actly understand  what  is  meant  by  dooming  criminals  to  the  chain  ; 
where,  and  for  what  purpose  it  is  to  be  done ;  but  I  am  satisfied  no 
punishment  of  tiiis  sort  could  have  any  effect  in  reforming  convicts ;  but 
I  would  rather  render  them  more  hardened  and  desperate  on  their  libe- 
!  ration.    1  forbear  to  extend  my  observations  onthi?  head,  because,  be- 


18 


iiig  of  opinion  that  solitary  confinement,  judiciously  regulated,  oflers 
the  best  chance,  both  ol  reformation,  and  the  prevention  of  crimes,  I 
would  give  it  a  fair  trial  before  1  would  resort  to  any  other  experi- 
ment. 

I  have  thus,  gentlemen,  given  you  my  ideas  on  the  several  questions 
proposed,  without  fastidiousness  or  reserve ;  believing  you  would  re- 
ceive them  as  an  evidence  of  ray  good  will  to  your  excellent  undertak- 
ing ;  and  not  as  pretending  to  any  particular  knowledge  of  the  subject ; 
or  bespeaking  an  overweening  confidence  in  my  opinions.  If  I  shall 
add  but  one  useful  hint  to  the  mass  of  information  you  will  doubtless 
collect  on  this  all-important  subject,  I  shall  be  proud  even  of  furnishing 
that  mite  to  your  success. 

Most  respectfully, 

Your  obedient  servant, 

JOS.  HOPKINSON. 

Messrs.  C.  D.  Colden, 
P.  A.  Jay, 

J.  MiLNOR, 

T.  Eddy, 

C.  G.  Haines. 

From  Bishop  JFHITE,  to  the  Committee. 

Philadelphia,  Nov.  8.  1820. 

GENTLEMEN,  . 

Your  letter,  dated  Sept.  1820,  addressed  to  me  as  President  of  the 
Philadelphia  Society,  for  alleviating  the  miseries  of  public  Prisons,  was 
duly  laid  before  them,  and  they  have  directed  me  to  answer  it  as  fol- 
lows : 

The  Penitentiary  System  in  Pennsylvania,  has,  in  a  great  measure, 
answered  the  purposes  contemplated  by  its  founders,  so  far  as  it  could 
be  conducted  upon  its  original  principles,  and  so  long  as  the  prisoners 
could  be  kept  separate  from  each  other,  and  classed,  and  managed, 
according  to  the  plan  proposed  by  the  friends  of  the  System  j  but  the 
prison  now  used  in  this  city,  is  not  much  larger  than  it  was  thirty-five 
years  ago,  since  which  time  there  has  been  nearly  a  threefold  increase 
of  the  inhabitants  of  the  state,  from  all  parts  of  which  criminals  arc 
brought  to  the  prison. 

Having  had  so  long  an  opportunity  of  observing  the  effects  of  thf 


19 


Penitentiary  System,  this  Society  place  full  confidence  in  its  efficacy, 
and  have  no  doubt  that  if  a  Penitentiary  was  established,  sufficiently 
large,  and  so  constructed  as  to  keep  the  prisoners  properly  separate 
(luring  the  time  of  their  meals,  and  labour,  and  sleeping,  if  no  pardons 
were  granted,  but  in  extraordinary  cases,  and  if  moderate  diet,  and  so- 
litary confinement  were  properly  attended  to,  its  efficacy  would  soon  be 
evident. 

In  reply  to  your  queries,  we  can  state,  1st.  The  effect  of  the  Peni- 
tentiary System  in  Pennsylvania  to  suppress  crimes,  as  compared  with 
that  of  the  laws  which  existed  in  this  state,  in  relation  to  public  offences 
prior  to  the  adoption  of  the  System,  has  been  very  great,  and  highly 
gratifying. 

2d.  We  acknowledge  that  the  practice  under  this  system,  has  not 
fully  answered  the  ends  of  its  institution — and  this  is  to  be  attributed, 
with  us,  in  a  great  measure,  to  the  want  of  a  proper  establishment,  in 
which  the  old  convicts  could  be  kept  separate — also  to  the  deficiency 
of  providing  suitable  employment.  The  frequency  of  pardons,  and  the 
desolate  condition  of  the  prisoners  when  discharged,  are  also  great  ob- 
stacles to  their  reformation. 

3d.  To  abandon  the  System,  would  not,  in  our  opinion,  be  politic  or 
necessary ;  to  attempt  its  improvement,  should  be  the  future  business 
of  the  friends  of  humanity. 

4th.  No  substitute  offers  to  us,  in  case  of  the  abandonment  of  the 
System. 

6th.  We  do  not  believe  it  would  better  promote  the  ends  of  justice, 
or  contribute  to  publi'  security,  to  adopt  capital  punishment  to  any  grea- 
ter extent  than  the  present  laws  embrace. 

6th.  We  consider  transportation  as  inexpedient,  and  think,  that  if 
the  Penitentiary  System  were  carried  into  effect,  the  other  would  be  un- 
necessary. The  chain  nas  never  produced  any  good  effect — but  could 
a  full  trial  of  solitude,  labour,  and  moderate  diet,  be  made,  under  the 
direction  of  suitable  agents,  it  is  believed,  nothing  further  would  be  re- 
quisite. 

Signed  by  order  of  Society,  , 

WM.  WHITE,  Prfesident.. 

Messrs.  C.  D.  Colden, 
P.  A.  Jay, 

J.  MiLNOR, 

T.  Eddv, 
C.  G.  Haines. 


20 


JVILLIAM  RAJVLE,  Esq.  to  the  Committee. 

Philadelphia,  Sept.  19,  1820. 

GENTLEMEN, 

I  have  had  the  lionor  to  receive  your  letter  of  enquiry,  relative  to 
the  Penitentiary  System ;  and  having  no  doubt  that  you  will  be  fully 
furnished  by  others  with  details  not  in  my  power  to  give,  I  proceed  to 
express  my  opinions  generally,  in  respect  to  the  interesting  subject  of 
your  enquiry. 

The  first  and  second  questions,  may  be  answered  together.  In 
Pennsylvania,  the  number  of  the  highest  order  of  crimes,  has,  I  think, 
diminished,  since  the  adoption  of  this  system— ttiking  into  view,  the 
increase  of  our  population. 

In  respect  to  offences  of  the  lower  grade,  it  has  operated  most  bene- 
ficially, by  this  abstraction  of  number,  during  the  confinement  imposed 
by  law.  In  this  respect,  (if  in  no  other)  society  receives  a  manifest  ad- 
vantage. Formerly,  after  sufl'ering  the  established  modes  of  punish- 
ment, whipping,  the  pillory,  &c.  the  convict,  (if  able  to  pay  the  fees) 
was  at  once  turned  loose  upon  the  world,  degraded,  and  desperate,  and 
for  want  of  other  support,  compelled  immediately  to  renew  his  depre- 
dations, or  to  starve.  Now,  society  at  least  gains  the  benefit  of  his  ab- 
sence, for  the  term  of  his  sentence.  That  the  system  has  not  yet  (with 
us)  fully  succeed,  in  practice,  is  not  to  b«  denied.  A  sincere  reforma- 
tion of  the  offender  has  seldom  been  produced,  and  even  if  it  exists,  is 
seldom  believed  :  individuals  generally  turn  with  distrust  and  appre- 
hension from  him,  who  appears  before  them  tainted  with  the  infliction 
of  such  a  sentence.  The  inability  to  obtain  an  honest  livelihood,  too 
frequently  drives  these  unfortunate  beings  to  a  repetition  of  their  bad 
courses,  and  renders  them  again  and  again,  tenants  of  the  prison. 

To  remedy  this  evil,  we  want  another  institution,  in  which  the  con- 
vict, having  served  out  the  time  of  confinement,  should,  on  application, 
be  sure  of  finding  employment.  This  should  be  under  public  regula- 
tion, and  at  further  expence.  Entrance  should  be  voluntary,  but  some 
restrictions  should  be  imposed  on  departure.  A  proportion  of  the  pro- 
fits of  his  labour,  should,  by  agreement,  be  secured  to  them,  and  faith- 
fully accounted  for. 

3d.  With  proper  internal  improvements,  I  prefer  retaining  the  Peni- 
tentiary System.  In  principle,  it  is  sound  and  correct.  The  chief  im- 
provements wanting,  appear  to  me  to  be,  the  inforcing  a  more  close 


21 


and  regular  attaiidance  to  rtligioas  duties.  In  no  other  way  can  the 
obduracy  of  these  people's  hearts  be  affected.  In  the  recent  instance 
of  the  Newgate  prisoners,  we  have  seen  what  may  be  effected  by  the 
perseverance  of  an  enlightened  individual.  Strict  solitary  confine- 
ment, should  be  the  chief  punishment — no  other  solace  than  religious 
books,  should  be  allowed  on  such  occasions. 

4th  and  5th.  Being  opposed  to  the  abandonment  of  the  Penitentiary 
System,  I  have  little  to  offer  on  the  subject  of  a  substitute.  I  may  how- 
er,  be  allowed  to  dissent  from  the  increase  of  capital  punishments. 
Whether  it  is  lawful  for  man,  in  any  case,  except  that  of  immediate 
self-defence,  to  deprive  another  of  his  life,  is  a  subject  of  high  impor- 
tance, into  which  it  is  needless,  at  present,  to  enter.  But  in  every  mo- 
dern code  of  criminal  law,  it  seems  to  be  admitted,  lliat  capital  punish- 
ments should  be  as  few  as  i)ossible. 

6th.  If  transportation  for  life  were  practicable,  it  would,  perhaps,  be 
the  most  certain  mode  of  relieving  the  community  from  the  burthen  of 
its  guilty  members.  But  I  know  not  how  it  could  be  effected.  The 
consent  of  the  inhabitants  of  the  country,  must  be  obtained,  or  they 
would  be  refused  admission ;  or,  if  not  destroyed  after  landing,  return- 
ed upon  our  hands. 

Land  them  on  an  island  in  the  south  sea  ;  if  they  should  overpower 
the  peaceable  inhabitants,  what  a  series  of  crimes  would  probably  en- 
sue ;  and  how  could  we  justify  ourselves  for  being  the  cause  of  it  ? 

As  to  the  "  chains,"  if  by  this  is  meant  that  the  convict  should  be 
employed  in  the  public,  or  exposed  labour  in  the  streets,  highway,  &c. 
as  was  once  attempted  in  Philadelphia,  and  seems  by  Howard's  great 
work,  to  have  been  practised  in  some  of  the  European  cities,  I  cannot 
too  strongly  express  my  disapprobation  of  it. 

With  us,  refractory  conduct,  daring,  and  often,  obscene  language, 
useless  labor,  or  rather,  the  mere  semblance  of  labor,  and  frequent  es- 
capes, soon  induce  us  to  relinquish  the  plan. 

If  the  chain  should  be  tried  again,  the  criminals  should  be  kept  to- 
gether, secluded  from  the  public,  and  debarred  from  all  e.xtraneous 
communication  in,  going  to,  or  returning  from,  their  daily  tasks.  That  ^ 
reformation  which  is  always  a  leading  object,  and  which  was  never  at- 
tained by  the  public  exposure,  might  possibly  be  thus  effected. 

This  concise  view  will,  I  hope,  be  as  acceptable  as  a  diffuse  and  ela- 


22 


borate  answer.    I  will,  at  any  rate,  evince  my  full  concurrence  in  the 
great  object  of  your  present  consideration. 
I  have  the  honor  to  be, 

Gentlemen, 

Your  most  obedient  servant, 

W.  RAWLE 

Messrs,  C.  D.  Colden, 
P.  A.  Jay, 

J.  MlUJOR, 

T  Eddy, 

C.  G.  Haines, 

ROBERTS  VAUX,  Esq.  to  the  Crnimittec. 

Philadelphia,  II  Mo.  14,  1820. 

RESPECTED  FRIENDS, 

It  afforded  nie  great  satisfaction  to  learn  by  your  circular  letter  o 
September  last,  that  you  were  endeavouring  to  collect  information  con- 
cerning the  effects  of  the  Penitentiary  System  in  the  United  States.  A 
more  important  inquiry  has  scarcely,  if  ever,  been  instituted  in  our 
country,  and  I  sincerely  desire  that  the  mode  you  have  adopted,  may 
be  the  means  of  yielding  for  you,  the  lights  of  experience,  and  the  sug- 
gestions of  wisdom. 

Without  pretending  to  be  qualified  for  the  administration  of  either  of 
those  valuable  assistants  to  your  labours,  1  take  the  freedom  to  submit 
a  few  thoughts. 

My  reflection  upon  this  subject  has  induced  me  to  believe,  that  the 
Penitentiary  System  has  never  been  y«Wy,  and /aiV/y,  adopted  in  any 
sta  e  of  the  union,  since  that  System  consists,  if  I  have  correct  ideas  of 
it,  in  the  application  of  the  following  principles. 

1st.  That  convicts  undergoing  its  wholesome  discipline,  should  be 
rigidly  confined  to  solitary  life,  and  employment. 

2d.  That  punishment  should  be  adapted  with  great  accuracy  to  the 
nature  of  the  offence,  preferring  to  err  on  the  side  of  clemency. 

3d.  That  no  redemption  from  the  penalty  should  ever  be  allow- 
ed. ' 

4th.  That  instead  of  calculating  what  labour  the  prisoner  can  perform 

to  maintain  himself  during  his  confinement,  let  the  attention  of  those 
who  have  the  care  of  him,  be  devoted  to  the  great  purpose  of  reforming 
his  mind. 


23 


5lh.  That  men  of  integi  ity,  and  honor,  be  appointed  to  the  office  of 
Inspectors  of  Prisons,  with  ample  powers  to  continue  in  office  for  a 
terra  not  less  than  five  years. 

As  these  principles  have  not  been  applied  in  Pennsylvania,  it  can- 
not be  said,  as  some  persons  contend,  that  the  system  has  failed  to  an- 
swer the  ends  of  its  institution. 

Imperfectly,  however,  as  the  experiment  has  been  here  made,  great 
benefits  have  resulted  from  it ;  crimes  have  certainly  lessened  in  num- 
ber, and  atrocity,  and  they  will  continue  to  diminish  in  the  same  de- 
gree, as  the  aims  of  punishment  are  directed  to  reconcile  the  offender 
to  society,  rather  than  by  social  life  in  jails,  to  educate  prisoners  in 
villainy,  and  by  degrading,  and  vindictive  treatment  when  in  prison, 
establish  opinions  in  their  minds,  that  they  are  bound  in  honar,  and  in 
valour,  to  array  themselves  against  the  community,  and  its  laws. 

Capital  punishment,  though  of  rare  occurrence  with  us  has  generally 
had  an  injurious  effect — the  spectacle  of  a  public  execution  has  always 
been  attended  with  numerous  offences.  If  under  any  circumstances, 
life  must  be  taken,  let  the  sufferer  pay  the  forfeit  within  the  prison  walls, 
obscured  from  public  observation. 

Transportation,  seems  to  be  an  expedient  rather  premature  for  this 
youthful  nation;  it  would  be  difficult  to  procure  a  suitable  place  abroad 
for  locating  prisoners. 

In  short,  solitary  confinement  appears  to  be  the  only  rational,  and 
efficient  mode  of  punishment — its  beneficial  influence  was  strikingly 
illustrated  in  the  prison  of  this  city,  some  years  ago.  A  young  offen- 
der was  committed  to  a  cell,  and  left  to  his  own  reflections.  Unknown 
to  the  keeper,  he  had  a  pencil  in  his  possession,  with  which  he  wrote, 
and  drew  upon  the  wall.  He  commenced  with  exhibiting  indecent  ob- 
jects, and  recording  scraps  of  lewd  songs ;  this  occupied  him  as  long 
as  his  imagination  supplied  him  with  impure  pictures,  or  his  memory 
furnished  obscene  verse ;  he  was  now  seen  to  record  sentiments  of  vir- 
tuous import,  and  in  process  of  time,  as  if  he  had  become  gradually, 
and  deeply  sensible  of  his  own  condition,  he  represented  a  ship  driven 
by  the  fury  of  a  storm,  and  perishing  under  its  effects  : — finally  he 
drew  a  vessel  gliding  with  easy  sail  into  her  desired  haven,  near  which 
he  placed  these  memorable  words  of  the  Redeemer  : — "  Come  unto  me 
ill  ye  that  labour,  and  are  heavy  ladened,  and  I  will  give  you  rest." 

I 
I 


24 


This  individual  was,  in  dbe  time,  released  from  confinement,  reformed, 
and  became  a  respectable  character. 
I  remain, 

Very  respectfully, 

Your  friend, 

ROUERTS  \AUX. 

To  C.  D.  CoLOEN, 

p.  A.  Jay, 

J.  MiLNOR, 

T.  Eddy, 

C.  G.  Haines. 

From  JAMES  MEASE,  Esq. 

Philadelphia,  Nov.  23,  1820 

SIR, 

I  had  the  pleasure  to  receive,  three  weeks  since,  the  circular  of  the 
New- York  Committee,  on  the  subject  of  the  Penitentiary  System.  Ha- 
ving given  my  ideas  with  respect  to  it,  and  as  to  what  ought  to  be 
done,  to  render  it  more  effectual,  and  to  free  us  from  the  rogues,  who 
show,  by  repeated  commission  of  crimes,  that  they  are  not  to  be  refor- 
med, 1  have  nothing  to  add.  What  I  have  written,  was  the  result  of 
mucli  and  careful  inquiry,  and  I  will  venture  to  say,  that  all  the  infor- 
mation collected  by  you,  will  only  tend  to  substantiate  my  facts,  and 
show  the  propriety  of  the  plan  I  have  recommended.  My  papers  are 
contained  in  the  5th,  6th,  7th,  and  8th  numbers  of  the  National  Ga- 
zette,^and  were  forwarded,  shortly  after  their  publication,  to  Thomas 
Eddy,  and  I  beg  leave  to  refer  you  to  them.  I  had  prepared  a  5th 
paper,  in  which  I  pointed  out  the  island  of  Tristanda  Cunha,  as  the 
most  suitable  place  to  transport  felons  to,  but  it  was  not  published. 
Wishing  you  all  success  in  your  important  labours, 
I  remain,  Sir, 

Respectfully  your  fellow-citizen, 

JAMES  MEASE. 

C.  D.  CoLDEN,  Esq.  Chairman  of  the 

Neic-York  Penitentiary  Committee. 


25 


From  the  same. 

Philadelphia,  Jan.  15,  1821. 

SIR, 

Some  weeks  since  I  had  the  pleasure  to  refer  you  to  my  papers 
on  the  Penitentiary  System  of  Pennsylvania,  contained  in  the  Na- 
tional Gazette,  of  this  city,  by  way  of  answer  to  your  Circular,  re- 
questing information  on  that  subject.  I  presume  Mr.  Thomas  Eddy, 
to  whom  they  were  sent  shortly  after  publication,  has  communicated 
them  to  you.  They  have  recently  been  re-published  in  the  Union 
Gazette,  of  Philadelphia,  more  at  large,  and  a  number  was  added, 
containing  an  account  of  the  place  to  which  I  would  have  all  those 
criminals  sent,  for  whose  crimes  I  deem  transportation  essential. 
This  number  I  now  enclose.  I  fear  an  expression  contained  in  my 
former  letter,  will  be  construed  as  implying  a  belief,  on  my  part,  that 
I  have  exhausted  the  subject,  and  the  inutility  of  the  trouble  which 
yourself  and  colleagues  have  undertaken.  I  beg  you  to  be  assured 
that  these  are  not  my  sentiments  :  but  I  cannot,  nevertheless,  refrain 
from  saying,  that  I  feel  confident  of  my  having  fallen  upon  the  only 
plan  that  can  with  certainty  and  economy  be  adopted,  to  relieve  socie- 
ty from  the  prevalent  accumulation  of  crimes,  and  to  prevent  them 
among  the  rising  generation.  They  are  rigid  solitary  confinement, 
without  work  ;  cessation  of  pardons,  except  in  particular  cases  spe- 
cified ;  transportation  for  all  second  offences,  and  for  certain  first 
crimes  ;  and  the  diffusion  of  education  among  the  poorer  classes  of 
society.  This  last  provision  applies  with  great  force  to  Pennsylvania. 
A  new  law  for  that  object  is  now  before  our  legislature. 

I  understand  that  the  project  of  building  a  new  prison  over  the 
marble  quarries,  or  inclosing  them  within  the  walls,  is  now  carrying 
into  effect,  on  York  Island.  If  the  expectations  are,  that  the  prison- 
ers will  be  enclosed  to  repay  for  the  expense  of  maintenance  by  their 
labour ;  that  they  will  be  reformed  ;  or  deterred  from  the  commissioa 
of  future  crimes,  when  released  from  confinement,  I  do  not  hesitate 
to  say,  and  to  predict,  that  disappointment  on  all  those  points  will  be 
experienced.  Your  present  establishment  is  infinitely  more  expensive 
than  that  of  Philadelphia ;  and  the  new  plan  will  be  much  more  cost- 
ly, and  productive  of  no  good,  except  accommodating  the  numerous 
villains  with  which  it  will  be  filled,  and  do  away  the  necessity  of  par- 
doning old  convicts  to  make  room  for  new  inmates.    My  plan  of  soli- 

D 


26 


tary  coniinemeDt  and  transportation,  after  a  few  examples  had  been 
made,  would  terrify  the  wicked  into  good  behaviour  A  continuation 
of  the  system  of  obliging  criminals  to  work  and  sleep  in  society,  will 
inevitably  cause  the  increase  of  crimes,  and  the  perpetration  of  the 
evils  we  at  present  deplore.  The  sooner  it  is  abolished  the  better. 
Accept  my  sincere  respect. 

JAMES  MEAS£. 

C.  D.  CoLDEN,  Esq.  Mayor  of  New- York, 
Chairman  of  the  Penitentiary  Committee. 

-»mil#lliii«=^ 

CONNECTICUT. 
iietter  from  his  Excellency  Governor  fVOLCOTT. 

Litchfield,  Conn.  Jan.  11,  1821. 

SIR, 

I  have  to  acknowledge  your  letter  of  September  last,  requesting 
information  respecting  tlie  results  of  the  Penitentiary  System  in 
this  State. 

1  now  transmit  a  copy  of  a  letter  from  Martin  Sheldon,  Esq.  with 
a  summary  statement  of  the  regulations  and  bye-laws  of  the  New- 
Gate  Prison.  Although  I  immediately  attended  to  your  request,  it 
was  only  a  short  time  sinre,  that  I  received  the  last  of  the  documents 
required,  which  will  account  for  the  delay  of  my  reply. 

The  ancient  punishments  of  those  crimes,  for  which  imprisonment 
in  New-Gate  is  now  substituted,  were,  death,  cropping  the  ears, 
branding  on  the  forehead,  whipping,  or  the  pillory.  This  prison  is 
either  the  oldest,  or  one  of  the  oldest  establishments  of  the  kind,  in 
this  country.  The  situation  is  secluded,  at  a  distance  from  our  prin- 
cipal roads  and  villages.  The  annual  expenses  are  now  about  eleven 
thousand  dollars. 

It  is  believed  by  many,  who  are  probably  the  best  judges,  that  the 
expenses  might  be  reduced,  by  enclosing  a  greater  space  of  ground, 
and  increasing  the  number  of  workshops  and  variety  of  labour  per-i 
formed  by  the  prisoners. 

Females  are  rarely  convicted  of  crimes  in  this  State,  and  are  never 
sentenced  to  New-Gate,  but  are  confined  separately  in  the  county 
work -houses. 

The  power  of  pardoning  offences,  is,  by  our  constitution,  exclusive-^ 


27 


ly  vested  in  the  General  Assembly.  It  is  very  rarely  exercised,  and 
never,  except  upon  proof  of  the  good  conduct  of  the  convict,  during 
his  confinement. 

The  prison  is  very  secure.  Its  solitude,  the  appearance  of  the 
caverns,  and  the  arrangements  for  exacting  the  prescribed  labour,  are 
appalling  to  beholders.  It  is  probably  a  defect,  that,  for  want  of  more 
room,  the  means  of  discrimination  between  convicts  of  different  de- 
grees of  enormity,  do  not  sufficiently  exist.  But,  notwithstanding 
these  circumstances,  the  situation  is  healthy  and  deaths  are  not  suppo- 
sed to  occur  more  frequently,  than  among  comparative  numbers  of 
the  inhabitants  of  the  neighbouring  towns  and  villages. 

Public  opinion,  in  this  State,  would  not  support  an  establishment, 
which  was  supposed  lo  be  inhuman,  or  unnecessarily  rigorous.  The 
people  are,  however,  economical,  and  are  not  willing  that  rogues  should 
become  dangerous  to  society,  or  inconveniently  burdensome  to  honest 
men. 

I  have  no  doubt,  that  the  institution  of  New-Gate  has  been  saluta- 
ry ;  and,  as  far  as  my  knowledge  extends,  no  wish  exists  among  the 
people,  that  recourse  should  be  had  to  the  ancient  modes  of  puntsh- 
ment. 

I  am  also  satisfied  that  the  Penitentiaiy  System  ought  not  to  aban- 
doned in  the  United  States ;  and  especially  that  exile  or  banishment 
ought  not  to  be  substituted.  It  is  manifestly  immoral  and  unjust  for 
any  State  to  expel  their  profligate  or  degraded  population  upon  ano- 
ther community. 

The  unpopularity  of  the  Penitentiary  System,  in  several  sections 
of  this  country,  has  probably  been  chiefly  occasioned  by  the  constant- 
ly increasing  number  of  convicts,  and  by  the  enormous  expenses  of 
these  establishments,  much  of  which,  in  my  opinion,  have  been  wholly 
unnecessary  and  worse  than  useless. 

The  scale  of  human  enjoyments  rises  from  that  degree  of  rest  and 
sustenance,  which  is  barely  sufficient  to  support  life,  to  that  which 
affords  the  means  of  the  highest  innocent  gratifications,  both  phy- 
sical and  mental ;  and  in  the  efforts  of  men  to  elevate  their  condition. 
In  this  scale  are  to  be  found,  (independent  of  religious  sentiments, 
which  originate  in  a  higher  source,)  the  excitements  to  all  human  im- 
1  provements,  including  all  the  motives  which  stimulate  industr)',  and 
j  the  causes  of  evf ry  attainment  in  civilizriiion  and  moral  excellence. 
Even  the  conduct  of  depraved  men  is  influenced  by  a  misdirected 


desire  of  happiness,  but  their  reason  being  perverted,  they  seek  to 
obtain  good  by  selfish  indulgencies,  and  the  gratification  of  unbridled 
passions.  It  is  the  object  of  penitentiary  establishments,  to  protect 
society  against  injuries,  to  restrain  tlie  unprincipled,  by  the  fear  of 
losing  the  enjoyments  which  they  possess,  and  to  convince  offenders, 
by  actual  deprivations,  that  "  the  way  of  the  transgressor  is  hard.'' 
In  my  opinion,  these  principles  have  not  been  sufficiently  regarded, 
in  many  of  our  establishments.  The  buildings  which  have  hitherto 
been  most  commonly  erected,  have  been  costly  and  magnificent  struc- 
tures, more  resembling  palaces,  than  places  adapted  to  the  punishment 
of  crimes  ;  and  the  appearance  of  the  interior  management  has  been 
rather  inviting  than  repulsive.  Frequently,  if  not  commonly,  the 
convicts  have  been  fed  and  clothed  in  a  manner  superior  to  what  ma- 
ny, perhaps  most  of  them,  were  accustomed  to  enjoy  before  their  im- 
prisonment, and  superior  to  what  great  numbers  of  the  virtuous  poor 
are  able  to  acquire  by  their  utmost  exertions.  The  sense  of  shamt 
has  been  extinguished,  or  levelled,  by  the  indiscriminate  treatment  of 
men  of  different  temperaments,  and  by  the  accumulation  of  too  great 
numbers  exposed  to  constant  intercourse.  Besides,  contrary  to  a  poli- 
cy equally  wise  and  humane,  the  condition  of  the  convicts  has  been 
presented  to  the  imagination  of  spectators,  as  far  more  tolerable  than 
the  truth  would  warrant,  whereas  an  impression  directly  the  reverse 
ought  to  prevail. 

The  propensities  and  habits  which  dispose  men  to  the  commission 
of  crimes,  are,  violent  passions,  intemperance,  and  dishonesty.  Con- 
victs are  commonly  men  of  vigorous  health,  middle  age,  and  frequent- 
ly, they  are  neither  deficient  in  intelligence  nor  education.  When  the 
productive  value  of  barbarous  and  unskillful  African  slaves  is  consider- 
ed, and  that  this  value  is  derived  from  their  involuntary  labour,  much 
of  which  could  be  more  advantageously  performed  by  horses  and  oxen,, 
it  is  apparent,  that  such  expenses  as  are  now  incurred  for  the  support 
of  convicts,  are  chiefly  owing  to  defective  managements. 

While  I  am  satisfied,  that  the  lives,  property  and  tranquility  of 
peaceable  and  honest  men  ought  to  be  absolutely  protected,  I  am  no 
ad\(  cate  for  cruel  punishments.  On  the  contrary,  I  believe  that 
criminals  have  rights,  which  ought  to  be  conscientiously  respected; — 
that  nothing  will  justify  governments  in  depriving  men  of  life,  but  the 
preservation  of  the  public  peace  ;  and  that  arbitrary  restraints,  pain 
and  wretchedness,  are  both  unjustifiable  and  unnecessary.  j 


29 


Penitentiaries  ought,  in  my  opinion,  to  be  erected  in  healthy,  but  se- 
cluded situations.  A  high  wall,  which  could  not  be  undermined,  with 
a  raihng,  protected  by  an  armed  guard,  and  with  interior  palisades, 
and  double  gates  of  cast  iron,  would  afford  the  requisite  security. 
Within  the  palisades,  a  number  of  work-houses  ought  to  be  erected, 
proportioned  to  the  numbers  of  convicts  expected  to  be  confined  in 
one  establishment.  These  work-houses  ought  to  be  so  contrived  as 
to  confine  the  prisoners  in  separate  classes,  according  to  iheir  different 
tempers  and  habits,  and  no  intercourse  ought  to  be  allowed  between 
the  different  classes. 

As  a  general  rule,  the  kind  of  labour  required,  ought  to  be  that  of 
which  the  value  can  be  easily  determined  by  quantity  or  measurement, 
or  what  is  called  task -work. 

Convicts,  on  arriving  at  a  penitentiary,  ought  to  be  convinced,  that 
they  cannot  escape  by  their  own  exertions,  and  that,  except  an  allow- 
ance of  bread  and  water  sufficient  to  sustain  life,  without  abridging  its 
duration,  all  their  comforts  will,  in  health,  depend  on  the  productive 
value  of  their  labour,  and  on  their  peaceable  and  regular  deportment  •. 
but  I  think  that  no  person  ought  to  be  divested  of  the  hope  of  enlarge^ 
ment,  by  a  sentence  of  imprisonment  during  life,  especially  for  a  first 
or  second  offence. 

The  arrangements  for  exacting  the  labours  required,  ought  to  be 
such  as  would  allow  it  to  be  performed  with  convenience  and  advan- 
tage ;  but  the  supplies  of  subsistence,  clothing,  and  materials  of  every 
kind,  ought  to  be  furnished  by  a  public  contract,  with  such  suitable 
person,  as  would  give  security  to  receive  the  avails  on  the  best  terms. 

I  am  satisfied  that  regulations  founded  on  these  principles,  would, 
in  a  short  time,  reduce  the  public  charges  to  the  expenditures  required 
for  the  support  of  buildings,  an  armed  guard,  and  perhaps  tools  and 
implements  of  labour,  besides  stated  compensations  for  medical  relief, 
religious  instruction,  and  salaries  to  a  board  of  inspectors,  as  a  protec- 
tion to  the  convicts  against  wanton  cruelty  and  oppression. 

I  have  the  honor  to  be,  very  respectfully, 
Your  obedient  servant. 

OLIVER  WOLCOTT. 

Tlie  hon.  Cadwalladek  D.  Golden. 


30 


From  MARTIN  SHELDON,  Esq.  to  Governor  Wolcotl. 

Granby,  Nov.  27,  1820. 

SIR, 

In  obedience  to  the  request  of  your  Excellency,  communicated  fo' 
us  by  letter  of  the  26th  September  last,  relating  to  New-Gate  prison, 
we  have  endeavoured  to  collect  such  information  upon  the  several 
heads  contained  in  that  letter,  as,  we  hope,  will  meet  the  wishes  of  your 
Excellency,  and  answer  the  object  in  view.  We  regret,  that  by  reason 
of  some  unavoidable  hindrances,  our  reply  has  been  so  long  delayed. 

About  the  year  1700,  a  company  of  miners,  from  Germany,  open- 
ed the  mines,  called  the  Copper  Mines,  then  belonging  to  Simsbury, 
now  Granby.  The  excavation,  made  by  raising  copper  ore,  is  about 
one  hundred  feet  in  length,  varying  in  width  from  ten  to  fifty  feet, 
and  in  height  from  five  to  fourteen  feet.  Toward  the  close  of  the 
Revolutionary  war,  about  the  year  1  778,  the  state  began  to  make  use 
of  this  cavern  for  the  ronfinenient  of  convicts.  By  an  act  of  the  le- 
gislature, passed  in  May,  1790,  "the  cavern  in  the  copper  mines  in 
Granby,"  was  constituted  and  made  a  public  gaol  and  work-house,  by 
the  name  of  New-Gate  Prison.  A  sum  of  money  (about  seven  hun- 
dred pounds)  was  granted,  to  defray  the  expenses  of  erecting  the  ne- 
cessary buildings  and  wall.  In  December,  1790,  the  work  was  accom- 
plished, and  eight  convicts  received  from  the  county  gaols.  Since 
that  time,  to  the  present,  including  those  committed  in  December, 
1790,  the  number  of  convicts  annually  committed  is  as  follows,  viz: — 


In  1790  .  . 

8 

In  1800  . 

.  11 

In  1810  . 

.  25 

1791  .  . 

11 

1801  . 

.  11 

1811  . 

.  18 

1792  .  . 

6 

1802  . 

.  17 

1812  . 

,  18 

1793  .  , 

11 

1803  . 

.  14 

1813  . 

.  9 

1794  .  . 

12 

1804  . 

.  12 

1814  . 

.  19 

1795  .  . 

12 

1805  . 

.  15 

1815  . 

.  16 

1796  .  . 

2 

1806  . 

.  19 

1816  . 

.  23 

1797  .  . 

6 

1807  . 

.  14 

1817  . 

.  32 

1798  .  . 

10 

1808  . 

.  17 

1818  . 

.  24 

1799  .  . 

6 

1809  . 

.  21 

1819  . 

.  21 

1820  .  .  31 


Total,  471 
The  whole  number  in  prison,  at  various  given  times,  from  ISlO  to 


81 


1820,  has  been  from  45  to  77.  The  crimes  of  which  they  have  been 
convicted,  were  generally,  burglary,  horse-stealing,  arson,  counterfeit- 
ing, and  passing  counterfeit  money,  attempts  to  commit  »ape,  forgery, 
and,  in  a  few  instances,  high  crimes  and  misdemeanors.  The  time 
of  confinement  has  been,  for  the  first  offence,  generally  from  eighteen 
months  to  three  years,  and,  upon  a  second  conviction,  double  the 
time.  In  few  instances,  not  exceeding  one  to  each  year,  since  the 
institution  of  New-Gate,  have  there  been  sentences  for  life. 

By  a  late  statute,  the  overseers  of  the  prison  are  authorised,  at  the 
expiration  of  the  time  for  which  the  prisoner  is  sentenced  for  confine- 
ment and  labour,  to  take  his  note,  with  the  best  security  he  is  able  to 
procure,  for  the  payment  of  the  costs  of  the  prosecution,  and  discharge 
him. 

The  effect  of  imprisonment  on  morals  and  manners,  as  far  as  has 
come  within  the  knowledge  of  the  overseers,  has  been  good.  In  seve- 
ral instances,  those  who  have  suffered  the  punishment  of  New-Gate 
imprisonment,  for  their  crimes,  have  turned  to  a  better  course  of  life, 
and  by  their  regular  conduct  and  conversation,  have  evinced  a  reforma- 
tion, and  become  industrious  and  useful  citizens. 

Respecting  the  mode  of  treatment,  the  prisoners  are  put  to  labour, 
in  the  day  time,  the  usual  hours  of  other  labourers  Their  employ- 
ment, until  1817,  was  confined  principally,  to  manufacturing  wrought 
nails.  Since  that  time,  various  other  employments  have  been  intro- 
duced, such  as  smith-work,  boot  and  shoe-making,  coopering,  wagcjon 
and  plough-making,  basket-making,  and  other  light  work.  Their  winter 
clothing  consists  of  home-made  woollen  cloth.  In  summer,  they  wear 
frocks  and  pantaloons  of  tow  cloth.  They  sleep  in  straw  bunks,  with 
woollen  blankets  for  covering.  Their  fare  consists  of  daily  rations ; 
each  ration  consisting  of  one  pound  of  good  beef  or  three  quarters  of 
a  pound  of  pork,  one  pound  of  rye  flour,  two  and  an  half  pounds  po- 
tatoes, or  three  gills  of  peas  or  beans,  and  one  pint  of  cider. 

The  prisoners  are  secured  by  a  guard — some  of  the  more  daring 
and  hardened  are  lightly  shackled  with  small  chains. 

As  to  the  government  of  New-Gate  prison,  three  overseers  are  an- 
nually appointed  by  the  legislature.    The  overseers  annually  appoint 
the  master  or  keeper  of  the  prison,  who  annually  enlists  his  guard, 
which  now  consists  of  one  sergeant,  two  corporals  and  17  privates. 
,   The  keeper  is  allowed  a  salary  of  550  dollars  annually.    The  wa- 


32 


ges  of  the  guard,  by  the  present  allowance,  are,  per  month,  for  thp 
serfeant,  67;  for  the  corporals,  $1 1  33;  and  for  the  privates, 
^lO  each,  toajether  with  rations.  In  addition  to  which,  the  guard  also 
receive  a  suit  of  clothes  annually,  consisting  of  a  coat,  vest,  and  pan- 
taloons, of  home-made  woollen  cloth,  and  two  dollars  each,  in  lieu 
summer  clothing. 

The  government  of  the  prison  is  further  regulated  by  a  code  of  rui< 
and  bye-laws,  made  by  the  overseers,  in  pursuance  of  the  6th  and  7i!i 
sections  of  the  statutes  passed  in  May  and  October,  1790. 
I  am  respectfully. 

Your  obedient  servant. 

MARTIN  SHELDON,  • 
One  of  the  Overseers  of  New-Gate  Prison. 

Summary  of  the  Regulations  and  Bye  Laws  for  the  government  o^l 
New-Gate  Prison,  revised  by  the  Overseers,  A.  D.  1819. 

The  prisoners  are  to  be  taken  from  their  lodging  rooms,  each  day, 
(Sumlays  and  public  days  excepted,)  at  sun-rise,  and  to  be  kept  at 
labour  through  the  day,  at  such  business  as  the  overseers  and  keeper 
direct,  and  at  the  close  of  the  day,  be  returned  to  their  rooms.  They 
shall  be  required  to  perform  a  reasonable  day's  labour,  in  that  branch 
of  business  of  which  they  have  acquired  a  competent  knowledge,  un- 
less prevented  by  sickness  or  infirmity. 

Any  prisoner  who  shall  fail  or  refuse  to  perform  the  labour  requi- 
red of  him,  in  a  workmanlike  manner,  or  shall  disobey  any  orders, 
shall  be  punished,  by  a  reduction  of  his  allowance  of  provisions,  by 
whipping,  not  exceeding  ten  stripes  for  one  offence,  or  by  constant  con- 
finement, in  the  caverns,  until  he  perform  the  duty  required  of  him.  I 

The  keeper  is  empowered  to  put  shackles  on  any  prisoner,  if  he 
deem  it  necessary  for  the  safe-keeping  of  the  prisoner,  or  the  safetyi 
of  the  prison.  -  j 

Any  prisoner  who  shall  cut  his  irons — or  who  shall  make,  conceal, 
or  keep  with  his  person  any  instrument  to  be  used  for  that  purpose,  oi, 
for  the  purpose  of  breaking  the  prison — or  who  shall  injure  the  prison 
or  work-shops,  in  attempting  his  escape — or  shall  keep  or  conceal  any' 
instrument  whh  which  he  may  injure  any  other  prisoner  or  person—  | 
or  shall  insult  or  abuse  the  keeper,  officers  or  guard — or  shall  quarrel  I 
with  any  other  prisoner — or  be  guilty  of  stealing — or  shall  speak  U  ' 


1 


83 


or  converse  by  writing,  with  strangers,  or  with  his  friends,  without  per- 
mission from  the  keeper,  shall  be  punished  as  before  mentioned. 

The  keeper,  at  his  discretion,  may  furnish  the  prisoners,  who  are 
the  most  diligent,  faithful  and  obedient,  with  ardent  spirits  occasion- 
ally, and  with  a  sufficient  allowance  of  the  best  provisions  in  his  pos- 
session. 

The  pard  are  prohibited  from  inflicting  arijr  punishment  on  a 
soner,  without  the  direction  of  the  keeper — and,  by  proper  relieves, 
are  to  keep  watch  over  the  prison,  by  day  and  by  night. 

Strangers  who  visit  the  prison,  are  prohibited  from  having  any  con- 
versation with  them,  or  trade  or  traffic  with  them,  or  making  any  pre- 
sent to  them,  without  the  permission  of  the  keeper. 

The  keeper  may,  at  his  discretion,  permit  or  refuse  permission,  to 
str^mgers,  to  examine  the  caverns. 

From  the  Honorable  JAMES  GOULD,  to  the  Committee. 

Litchfield,  Oct.  10,  1820. 

GENTLEiMEN, 

I  feel  myself  bound  to  apologize  for  my  delay,  in  replying  to  the 
inquiries,  which  I  have  lately  had  the  honour  of  receiving  from  you, 
in  relation  to  "the  results  and  tendency  of  the  Penitentiary  System."' 
This  delay  has  been  occasioned  by  your  circular's  having  arrived 
during  my  absence,  for  several  weeks,  from  home,  and  of  constant 
and  urgent  engagements  since  my  return. 

Upon  a  subject  so  deeply  interesting  to  the  world,  as  that  to  which 
your  inquiries  relate,  I  greatly  regret  the  necessity  I  am  under,  of  ac- 
knowledging, that  I  am  almost  entirely  uninformed.  It  is,  eminently, 
one  of  those  subjects,  upon  which  the  only  safe  rule  of  judging  is  to 
be  deduced,  principally,  at  least,  from  the  details  of  experimental  in- 
formation, of  wiiich,  I  am  sorry  to  say,  I  have  none  :  and,  as  a  matter 
of  speculative  investigation,  it  has  lain  very  much  out  of  the  range  of 
my  inquiries. 

With  this  avowal,  it  would,  periiaps,  be  most  proper  for  me  to 
close,  I  take  the  liberty,  however,  to  add,  that  from  the  few  and  par- 
tial practical  results,  with  which  I  have  occasionally  been  made  ac- 
quainted, by  report,  I  have  been  led  very  strongly  to  doubt,  whether 
the  Penitentiary  System  will  be  found  adapted  to  the  ends  proposed  to  be 
attained  by  it.    So  far  as  my  limited  means  of  information  have  led  me 

E 


84 


.(o  turai  any  judgment  at  all,  upon  the  general  question,  my  prevailinf 
apprehension,  I  am  constrained  to  acknowledge,  has  been,  that  the 
>ystem  must  ultimately  fail,  for  want  of  sufficient  penal  terrors,  in  its 
sanctions.  I  have  been  in  the  habit  of  believing,  that  the  most  effica- 
cious mode  of  preventing  or  checking,  crimes— if  not  the  only  one  of 
any  extensive  efficacy — is,  to  deter  men  from  the  commission  of  them. 
.And,  though  the  moral  certainty  of  punishment,  as  a  consequence  of 
conviction,  is,  undoubtedly,  essential  to  this  end;  yet  this  certainty 
alone — abstracted  from  the  nature  and  degree  of  the  punishment  per- 
.  scribed — will  not,  I  suspect,  be  found  sufficient.  Penal  laws,  to  be 
effectual,  must  be  addressed,  and  addressed  powerfully,  to  the  fears 
of  men.  For,  as  temptations  to  the  commission  of  crimes  are  strong, 
it  would  seem,  that  the  checks  intended  to  restrain  them,  should  be 
proportionably  so.  In  this  particular,  I  fear,  the  Penitentiary  System 
will  be  found  radically  defective. 

It  is,  confessedly,  most  desirable,  that  the  sanctions  of  criminal  law 
should  be  made  to  operate,  (so  far  as  a  paramount  necessity  may  not 
forbid  it,)  as  the  means  of  reforming  offenders.    Whether  such  a  sys- 
tem may  be  practicable,  or  not,  is  to  be  ultimately  ascertained,  I  am 
aware,  by  the  results  of  experiment,  if  at  all     And  whether  the  ex- 
periment has,  or  has  not,  been  fulfy  and  fairly  made,  already,  I  am 
ill-qualified  to  judge.    I  am  very  apprehensive,  however,  that  it  never 
can  be  rendered  successful,  to  any  considerable  extent.    Among  con- 
victs, the  average  number  of  subjects,  upon  whom  the  ordinary  and 
proper  motives  to  reformation,  would  be  likely  to  exert  any  salutary 
and  permanent  influence,  will  always,  I  suspect,  be,  comparatively, 
very  small:  and,  unless  those  who  would  be  most  open  to  the  influ- 
ence of  such  motives,  could  be  distinguished,  with  certainty,  before- 
hajid,  from  their  more  incorrigible  fellow-convicts,  and  eflectually 
separated  from  them ;  that  number  would,  in  all  probability,  be  con- 
stantly diminishing.    Within  my  own  very  limited  experience,  1  have 
not  known  an  instance,  in  which  it  could  be  said,  ivith  certainty,  or 
with  reasonable  confidence,  that  reformation  had  been  produced,  by 
any  punishment,  severe  or  mild.    And  the  impediments  to  success,  in 
such  a  jilan  for  reforming  offenders,  are,  in  my  view,  so  numerous  and 
so  formidable,  that  I  entertain  but  little  hope  of  its  proving  effectual. 
Even  if  the  scheme  should  prove  successful,  in  a  greater  proportion 
of  individual  cases,  than,  I  believe,  can  be  rationally   expected  :  I 
still,  the  very  means,  by  which  alone  any  gemnne  and  lasting  re-  J 


35 


formation  must  be  effected,  if  effected  at  all,  would  tend,  (if  not  di- 
rectly to  encourage  the  commission  of  crimes  in  others,)  at  least  to  di- 
minish, in  a  dangerous  degree,  their  fears  of  the  consequences  of 
transgression.  Indeed,  however  revolting  to  a  humane  mind,  ihr 
conclusion  may  and  must  be,  I  am  constrained  to  say,  that  the  pre- 
sent Penitentiary  System,  in  our  country,  must,  I  fear,  at  no  distant 
period,  be  abandoned,  and  a  severer  criminal  code  adopted  in  its 
place. 

These  suggestions,  being  almost  exclusively  theoretical,  and  very 
general,  might,  perhaps,  have  more  properly  been  spared.  But  I  did 
not  know  that  I  could  better  manifest  my  respect  for  the  Committee, 
or  my  desire  to  comply,  so  far  as  I  might  be  able,  with  their  request, 
than  by  communicating  my  general  impressions  on  the  subject,  how- 
ever vague  and  crude  they  might  be.  If  they  should  be  found,  as  per- 
haps they  may  be,  wholly  incorrect,  I  should,  for  humanity's  sake, 
sincerely  rejoice  in  abandoning  them  myself,  and  in  seeing  them  re- 
jected, in  the  penal  codes  of  all  nations. 

If  a  more  rigorous  criminal  code  should  be  found  necessarj',  the 
question— WTiat  shall  that  code  be,  and  what  sanctions  shall  be  pre- 
scribed ? — would  open  a  field  of  inquiry,  which  I  feel  myself  not 
qualified  to  enter,  and  require  a  course  of  detail,  which  my  limited 
acquaintance  with  the  subject  would  not  enable  me  to  pursue.  This 
consideration  must  also  be  my  apology  for  not  attempting  to  answer, 
specifically,  your  more  particular  inquiries. 

I  am,  Gentlemen, 

with  the  greatest  esteem, 
Your  obedient  servant, 

JAMES  GOULD 

Messrs.  C.  D.  Golden, 
P.  A.  Jay, 

J.  MlLNOR, 

T.  Eddy, 
C.  G.  Haines. 


36 


MARYLAND. 

tetter  from  DANIEL  RAYMOND,  Esq.  Counsellor  at  Law,  to  the 
Committee. 

Baltimore,  Jan.  13,1821. 

GENTLEMEN, 

I  had  the  honor  to  receive,  a  few  days  since,  a  circular  from  yoii, 
informing  me,  that  you  "  had  been  appointed  a  Committee  to  prepare 
a  general  Report  on  the  results  and  tendency  of  the  Penitentiary  Sys- 
tem," and  requesting,  from  me,  an  answer  to  certain  inquiries  contain- 
ed in  your  circular. 

I  duly  appreciate  the  honour  you  have  conferred  upon  me,  and  only 
regret  my  inability  to  assist  you  in  your  labours  upon  this  interesting 
and  important  subject.  But,  although  my  observations,  and  reflections, 
can  he  of  very  Uttle  service  to  you,  in  your  inquiries,  still,  as  they  have 
been  requested,  I  shall  not  decline  giving  them. 

I  have  never  investigated  the  subject  with  a  view  to  form  a  reg- 
ular treatise  upon  it,  my  observations  will,  I  fear,  be  crude  ;  but  as  I 
addressing  gentleman  who  are  in  no  danger  of  being  improperly  in- 
fluenced by  my  immature  reflections ;  and  who  will,  at  the  same  time, 
duly  appreciate  my  motives,  and  make  everj'  allowance  for  my  want  of 
experience  and  opportunity,  whatever  may  be  the  demerit  of  my  pro- 
duction, I  shall  freel}'  give  you  the  result  of  my  reflections  and  obser- 
vations upon  the  different  points  proposed  for  consideration,  knowing 
that  you  cannot  expect  me  to  throw  much  light  upon  a  subject,  which 
has  bafiled  the  efforts  of  the  most  powerful  minds. 

I  will  here  premise,  that  I  have  only  that  general  knowledge  of  tlie 
Penitentiary  System  which  is  to  be  derived  from  our  statute  books— 
from  occasionally  attending  courts  of  criminal  jurisdiction,  and  the  ge- 
neral acoounts  of  the  system,  sometimes  given  in  our  public  journals. 
It  will  not,  therefore,  be  in  my  power,  to  give  you  any  minute  detail  of 
facts,  and,  as  my  experience  does  not  extend  to  a  period  anterior  to  the 
estabhshment  of  the  System,  I  cannot  speak  of  its  advantages,  in  com- 
parison with  the  system  of  punishment  which  prevailed  prior  to  its  es- 
tablishment. 

As  to  the  second  inquiry,  I  would  observe,  that  the  ends,  or  object  of 
the  Penitentiary  System  of  punishment,  I  understand  to  be,  the  preven- 
tion of  crimes,  and  the  reformation  of  criminals.  One,  or  both  of  these, 
is  the  object  of  every  penal  code.    Besides  these,  there  was,  perhaps,  a 


37 


desire  to  ameliorate  tbe  seventy  of  the  existiag  laws,  and  to  lessen  the 
expense  of  the  sUte ;  but  these  objects  must  always  be  subordinate  to 
the  main  objects  of  prevention  and  reformation,  and  therefore,  can  ne-i 
ver  be  pursued  in  derogation  of  the  main  objects.  There  can,  I  be- 
lieve, be  little  doubt  but  that  the  Penitentiary  System  has  utterly 
failed,  both,  to  prevent  crimes  and  to  reform  criminals.  Of  this,  eve- 
ry Penitentiary  in  the  country  affords  lamentable  proof. 

To  what  then,  is  this  failure  to  be  attributed  .''  This  is  a  much  more 
difficult  question  to  answer  ;  and  in  order  to  answer  it  satisfactorily,  it 
will  be  necessary  to  investigate  some  of  the  principles  of  human  nature. 
— The  character  of  the  different  classes  of  the  community  ; — the  mo- 
tives of  human  action  ;— cuid  the  nature  and  effect  of  different  punish* 
ments  upon  different  characters. 

Men  are  rational  beings,  and  their  universal  pursuit  is  happiness. 
This  may  be  laid  down  as  a  universal  principle,  equally  applicabl  e  to 
every  class  of  mankind.  Men  have  different  capacities  and  different 
ideas  of  what  will  contribute  to  their  happiness  ;  but  it  is  as  true  of  the 
petty  felon,  as  of  the  commander  of  an  array,  or  the  ruler  of  an  empire, 
that  he  never  chooses,  what  in  his  estimation  b  a  lesser,  in  preference 
to  a  greater  good.  Different  men,  will  act  differently  in  the  same  cir- 
cumstances, from  their  different  motives  of  what  will  contribute  to  their 
happiness,  but  none  of  them  ever  act  deliberately,  upon  the  principle 
ut'choosing  what,  in  their  estimation,  is  a  lesser,  in  preference  to  a 
greater  good.  The  martyr  who  is  burnt  at  the  stake,  considers  the  ut- 
most extremity  of  corporal  suffering,  a  lesser  evil,  than  a  dereliction  of 
principle ;  and  the  petty  felon,  who  robs  a  hen-roost,  acts  upon  that 
universal  principle  of  human  nature,  of  choosing  what,  according  to  his 
notions  and  feelings,  is  the  greater,  instead  of  the  lesser  good. 

This  principle  b  entirely  distinct  from,  and  perfectly  consistent  with, 
man's  moral  obligation,  and  his  accountability  for  crimes ;  for,  although, 
the  desire,  and  the  pursuit  of  happiness,  is  universal,  yet  the  motives 
which  actuate  different  men  in  the  pursuit  of  it,  are  as  different  as  the 
moral  characters  of  men,  and  as  widely  diversified  as  those  sublime 
principles  and  feelings,  which  govern  the  conduct  of  the  martyr,  and 
those  base  ones  which  actuate  the  pick-pocket,  and  the  swindler;  and 
it  is  upon  the  motives  of  men  in  tbe  ptirsuit  of  happiness,  that  penal  laws 
are  designed  to  operate. 


88 


^?  It  is  notorious  that  men  never  commit  crimes  when  they  know  those 
are  watching,  who  will  detect,  apprehend,  and  punish  them.  This 
single  fact  shows,  that  by  a  perfect  system  of  government,  men  may  be 
prevented  from  committing  crimes  against  society,  and  it  also  shows, 
that  this  perfect  sj'steni  of  government  consists  in  the  certainty  of  de» 
tection  and  punishment. 

I  assume  it  then,  as  a  general  principle,  that  men  would  not  violate 
thr  l3w,  if  they  knew  to  a  certainty  that  immediate  detection  and  pun- 
ishtnent  would  follow.  To  this  general  principle,  I  admit  there  are 
some  exceptions.  A  man  in  a  violent  gust  of  passion  may  commit 
homicide,  although  he  may  be  certain  that  his  own  life  will  be  the  im- 
mediate forfeiture ;  and  there  may  be  other  passions,  equally  violent 
and  uncontrolable  ;  but  these  are  exceptions  to  the  general  rule,  and 
should  not  therefore  be  made  the  basis  of  a  code  of  penal  laws. 

If,  then,  certainty  of  detection  and  punishment  is  a  sure  prevention 
of  crimes,  this  principle  should  be  made  the  basis  of  a  penal  code,  and 
the  c'reat  object  should  be  to  carry  this  principle  to  the  greatest  possi- 
ble degree  of  perfection  ;  and  in  proportion  as  it  approximates  to  perfec- 
tion, in  this  respect,  in  the  same  proportion  will  it  restram  the  commis- 
sion of  crimes. — There  must  not  only  be  certainty  of  detection,  but 
certainty  of  punishment  also,  which,  under  the  present  system,  is  far 
from  being  the  case  with  a  large  portion  of  those  whom  the  law  profes- 
ses to  punish  In  affixing  a  penalty  to  different  crimes,  regard  should 
be  had  to  the  characters  of  the  different  classes  of  society,  who  are  like- 
ly to  be  most  affected  by  them  ;  and  to  the  different  kinds  of  punish- 
ment which  may  be  inflicted  with  the  fairest  prospect  of  producing  the 
desired  effect.  One  great  defect  of  the  present  Penitentiary  System, 
consists  in  the  indiscriminate  application  of  the  same  punishment  to  all 
classes  of  persons,  which,  from  the  great  diversity  of  character,  causes, 
in  reality,  very  great  inequality  in  the  punishment.  That  which  is  the 
severest  punishment  to  one  man,  may  be  none  at  all  to  another,  and 
that  which  we  call  punishment,  is  often,  in  point  of  fact,  either  none 
at  all,  or  very  trifling,  which  is,  in  reality  the  case  with  a  large  propor- 
tion of  the  tenants  of  our  Penitentiaries.  Our  Penitentiaries  are,  in  fact, 
nstead  of  being  places  of  punishment,  mere  workshops  and  schools  of  vice, 
where  those  who  long  inhabit  them,  not  only  lose  all  sense  of  moral  ob- 
ligation, and  all  those  habits,  without  which,  no  man  can  be  supposed 
capable  of  procuring  an  honest  livelihood,  but  also,  where  they  become 


39 


adepts  in  every  species  of  vice  and  crime.  A  Penitentiary  will  never 
answer  the  objects  of  its  establishment,  until  it  is  made  a  place  of  real 
punishment  to  those  who  are  sentenced  to  confinement  in  it,  and  it  is 
but  a  mockery  of  justice,  to  shut  up  those  criminals  in  Penitentiaries, 
to  whom  they  have  no  terrors,  and  who,  in  reality,  enjoy  as  much  hap- 
piness while  undergoing  this  pretended  punishment,  as  they  are  accus- 
tomed  to  enjoy  when  at  large  in  the  world.  In  my  opinion,  there  is 
nothing  in  which  the  Penitentiary  System  is  more  defective,  than  in  the 
iojudicious  application  of  punishment.  I  am  aware  that  the  laws  must 
be  equal,  and  apply  to  all  classes  of  society,  and  that  no  discretionary 
power  can  be  lodged  with  the  court,  or  with  any  other  tribunal  to  ap- 
ply different  punishments,  according  to  the  different  characters  (  f  the 
dehnquents.  All  persons,  who  shall  be  guilty  of  the  same  crimes,  must 
be  subjected  to  the  same  punishment ;  still  this  will  not  prevent  a  much 
more  appropriate  and  judicious  application  of  punishment,  than  is  at 
present  inflicted. 

Certain  crimes  generally  prevail  among  certain  classes  of  society, 
and  the  punishment  of  those  crimes  may  be  made  applicable  to  those 
particular  classes  of  people,  among  whom,  the  crimes  are  most  preva- 
lent, and  who  will  be  most  sensibly  affected  by  the  punishment. 

The  gi;eat  object  of  punishment,  although  not  the  ostensible  one,  is 
to  deter  others  from  committing  similar  offences.  Different  classes  of 
society  are  to  be  operated  upon,  and  deterred  from  violating  the  law,  by 
those  kinds  of  punishments,  which  they  most  dread  ;  and  although  it  is 
to  be  hoped,  that  there  is  a  large  portion  of  every  community,  whose 
sense  of  religious  and  moral  duty,  is  sufficiently  strong  to  prevent  them 
from  violating  any  known  law,  even  though  there  should  be  no  penalty 
or  disgrace  attached  to  the  violation,  and  for  whom,  therefore,  the  ter- 
rors of  a  penal  code  are  entirely  unnecessary,  yet,  unfortunately,  there 
is  a  very  large  class  in  every  community,  whose  sense  of  moral  and  re- 
ligious duty  is  not  sufficiently  strong  to  prevent  them  from  the  commis- 
sion of  crimes  independently  of  the  feai-  of  punishment  and  disgrace. 
This  class,  it  is  to  be  feared,  is  much  more  numerous  than  charity  would 
lead  us  to  suppose,  and  is  to  be  found  in  every  rank  and  grade  in  life. 
A  large  portion,  however,  who  have  not  a  sufficient  sense  of  moral  du- 
ty to  restrain  thtm  from  the  commission  of  crimes  against  society,  have 
nevertheless,  sufficient  regard  to  character,  to  restrain  them,  independent- 
lj[_of  _the  fear  of  actual  punishment.    To  this  class,idisgrace  is  a  severer 


40 


punishment  than  the  actual  suffering  from  confinement  in  a  Penitentia-  j 
l-y.    There  is  no  doubt  many  a  man  who  has  not  moral  principle  | 
enoue;h  to  restrain  him  from  the  commission  of  crimes,  who  would  soon-  ' 
er  suffer  five  years  confinement  in  a  Penitentiary,  provided  it  could  be  j 
endured  in  perfect  secrecy,  than  have  his  name  published  in  a  newspa-  | 
per,  as  having  been  guilty  of  the  crime  for  which  he  was  to  suffer.  Men  | 
of  this  description  are  seldom  guilty  of  the  more  mean  and  petty  offen- 
ces— they  seldom  pilfer  and  steal.    There  are  grades  of  crimes  as  well  j 
as  grades  of  men,  and  one  grade  of  men  will  not  ordinarily  be  guilty  of  I 
those  crimes  most  common  among  a  grade  of  people  whom  they  con*- 
Sider  beneath  them.    This  regard  to  character,  should  be  fostered,  and 
made  a  medium  of  punishment,  by  the  government;  and  a  very  effec- 
tual method  of  punishing  men  in  the  higher  grades  of  society,  is  by  mak- 
ing their  crimes  as  public  as  possible.    The  lowest  class  of  society  Is 
almost  entirely  insensible  to  disgrace,  and  to  them  a  Penitentiary  is  no 
farther  a  terror,  than  as  it  inflicts  actual  suffering.    To  people  of  this 
description,  confinement  in  our  Penitentiaries  is,  in  fact ,  little  or  no 
punishment,  and  these  are  the  people  who  commit  the  greatest  number 
of  crimes,  if  not  crimes  the  most  aggravated  in  their  nature,  and  it  is 
by  persons  of  this  description,  that  our  Penitentiaries  are  most  tenanted. 
There  is  no  method  of  punishing  people  who  are  insensible  to  the  loss 
of  character,  but  by  the  infliction  of  corporal  suffering.    Those  who 
propose  to  punish  ther>  by  confinement  in  a  Penitentiary,  evince  great 
ignorance  of  human  nature.    They  enjoy,  during  their  confinement,  all 
the  necessaries  of  life,  and  ordinarily  as  great,  or  even  a  greater  share 
of  the  comforts  also,  than  they  have  been  accustomed  to,  and  probably 
even  a  greater  share,  than  they  would  be  capable  of  procuring  for  them- 
selves, if  at  liberty  ;  and  it  is  a  notorious  fact,  that  many  of  them  would 
as  soon  be  in  the  Penitentiary  as  out  of  it,  and  it  is  by  no  means  an  un- 
usual thing  for  those  who  have  been  discharged  from  a  Penitentiary,  to 
commit  a  crime  for  the  express  purpose  of  being  sent  there  again.  It 
is  but  a  mockery  of  justice  to  pretend  to  punish  such  people  by  con- 
finement in  a  Penitentiary. 

Our  Penal  Codes  and  Penitentiary  Systems,  throughout,  exhibit  th* 
most  lamentable  disregard  to  all  the  principles  of  human  nature  ;  so 
much  so,  that  a  man  thoroughly  acquainted  with  those  principles, 
would  scarcely  be  able  to  infer  from  an  examination  of  a  Penitentiary, 
tliat  it  was  designed  for  the  punishment  of  criminals ;  certain  it  is,  hi 


41 


never  would  suspect  that  it  was  designed  as  a  place  of  penitence  and 
reformation.  A  legislator  is  but  ill  qualified  for  his  responsible  office, 
who  is  ignorant  of  the  principles  of  man's  nature,  and  he  must  faitli- 
Ussly  discharge  the  duties  of  that  office,  when,  in  forming  a  penal  code, 
he  disregards  those  principles. 

The  human  mind  possesses  wonderful  elasticity  and  facility  in  ac- 
commodating itself  to  existing  circumstances.  If  this  was  not  the  case, 
we  siiould  be  much  more  wretched  beings  than  we  are.  The  walls  of 
a  Penitentiary  do  not  change  human  nature,  and  a  man  will  as  soon 
accommodate  himself  to  the  deprivation  of  liberty,  as  to  any  other  mis- 
fortune or  calamity.  How  soon  do  the  most  sensitive  of  our  species, 
recover  from  the  calamitous  dispensations  of  divine  providence,  as  well 
as  from  the  ordinary  misfortunes  of  life  !  We  daily  see  persons  suffer- 
ing the  most  poignant  and  inconsolable  affliction,  for  some  sudden  and 
irreparable  calamity ;  but  the  mind  soon  accommodates  itself  to  this  new 
state  of  things,  and  we  see  them  in  a  few  days,  or  a  short  time,  recover 
their  wonted  cheerfulness  and  gaiety.  The  same  principle  applies  to, 
and  governs  the  subjects  of  legal  punishment,  and  a  person,  who,  on  be- 
ing sentenced  to  a  Penitentiary,  may  endure  the  most  excrutiating  men- 
tal suffering,  in  the  course  of  a  very  short  period,  becomes  accustomed 
to  this  new  condition — the  mind  recovers  its  wonted  tone,  and  the  Pen- 
itentiary is,  in  reality,  no  longer  a  place  of  punishment ;  and  I  very  lit- 
tle doubt,  but  that  the  convicts  of  a  Penitentiary  enjoy,  ordinarily,  as 
great  a  share  of  happiness,  after  having  been  there  lone  enough  for  the 
mind  to  accommodate  itself  to  this  new  state  of  things,  as  they  were  ac- 
customed to  enjoy,  when  at  large ;  so  that  the  object  of  the  Penitentia- 
ry, so  far  as  it  regards  punishment,  is  almost  entirely  defeated  by  its 
injudicious  regulation  and  management,  and  in  other  respects,  as  will 
presently  be  shown,  much  worse  than  defeated. 

A  Penitentiary  System  has  a  two  fold  object — punishment,  and  re- 
formation.— The  former  object,  is  entirely  defeated,  whenever  confine- 
ment in  a  Penitentiary,  ceases,  from  whatever  cause,  to  be  a  punish- 
ment ;  so  that,  if  a  man  is  sentenced  to  the  Penitentiary  for  ten  years, 
and  after  remaining  there  three  months,  becomes  so  accustomed  to  it, 
as  to  enjoy  an  ordinary  share  of  happiness,  confinement  for  the  re- 
maining nine  years  and  nine  months,  is,  in  reality,  without  any  efTect 
i  whatever,  in  accomplishing  this  object,  and  a  mere  mockery  of  punish- 
ment. 


F 


Experience  also  proves,  that  this  confinement  is  wholly  ineflectual 
ill  reforming  the  convict.  What  we  call  a  Penitentiary,  is,  in  fact,  a 
misnomer,  and  our  work-houses,  tiius  denominated,  ought  never  to  have 
received  such  an  appellation.  Experience  has  abundantly  proved,  that 
penitence  is  never  the  result  of  confinement  in  our  Penitentiaries,  and  I 
maintain,  that  according  to  the  known  laws  of  the  human  mind,  it  is 
impossible  that  they  should  work  penitence  and  reformation,  or,  at  any 
rate,  that  this  cannot  be  their  tendency,  and  if  they  ever  have  tiiis  ef- 
fect, it  is  not  their  natural  effect,  but  merely  an  exception  to  the  gene- 
ral rule.  I  do  not  say  that  our  Penitentiaries  cannot  be  so  improved 
as  to  be,  in  reality,  what  they  purport  to  be  :  but  if  they  are  ever  so  impro- 
ved, it  will  be  done  by  adapting  them  to  our  nature,  and  by  causing  them 
to  operate  on  the  human  mind  in  a  different  manner  from  what  they 
now  do.  At  present,  they  are  mere  work-houses,  and  according  to  my 
notions  of  human  nature,  a  work-house  and  a  Penitentiary,  are  alto- 
gether incompatible.  The  two  are  founded  upon  distinct  principles, 
which  are  in  opposition  to  each  other ;  or  at  any  rate,  so  far  in  opposi- 
tion, that  they  never  can  be  reconciled,  or  made  to  unite. 

Let  us  examine  a  little  into  some  of  the  laws  of  the  human  mind,  as 
we  see  them  daily  exhibited  in  the  world,  arid  let  it  be  recollected,  that 
these  principles  are  not  changed  by  confinement  within  the  walls  of  a 
prison.  Suppose  a  man  is  suffering  under  some  mental  dejection  and 
oppression,  I  care  not  from  what  cause,  whether  it  be  some  dispensa- 
tion of  providence,  conviction  of  sin,  or  some  worldly  loss;  what 
remedy  would  any  discreet  man  propose,  as  most  likely  to  relieve  him  ? 
Employment,  exclaims  every  man,  as  soon  as  the  question  is  proposed. 
If  you  can  get  such  a  man  into  a  work-shop,  I  care  not  how,  and  busi- 
ly employed  for  twelve  hours  in  a  day  at,  I  care  not  what,  I  venture  to 
say,  that  in  ninety-nine  cases  in  a  hundred,  a  complete  cure  will  be  ef- 
fected, and  the  patient  probably  be  made  perfectly  happy,  or  at  least, 
as  happy  as  from  the  constitution  of  their  minds,  they  are  capable  of 
being.  Mental  suffering  then,  and  laborious  employment,  are,  if  no) 
entirely,  at  least  to  a  very  great  extent,  incompatible,  and  irreconcila- 
ble, and  yet  all  our  Penitentiary  Systems,  are  predicated  upon  the 
compatibility  of  these  two  principles  of  human  nature.  The  System 
proposes,  as  a  principal  object,  mental  suffering,  penitence,  and  refer 
mation,  and  attempts  to  accomplish  this  object  by  compelling  the  en 
minal  to  go  immediately  to  hard  labour,  the  best  and  most  effectun 
method  of  preventing  mental  suffering,  penitence,  and  reformation. 


43 


Our  lawgivers  seem  to  suppose,  that  labour  is,  in  itself,  a  punish- 
ment, as  if  they  were  ignorant  that  labour  is  the  common  lot  of  man  by 
the  express  sentence  of  God  himself.  I  cannot,  myself,  well  imagine 
a  greater  absurdity,  than  to  think  to  punish  a  man  by  compelling  him 
to  labour. 

The  reason  why  a  Penitentiary,  upon  the  present  plan,  defeats  the 
very  object  of  a  Penitentiary,  is  not  less  obvious,  than  the  fact  of  its 
producing  this  effect.  The  human  mind  is  not  capable  of  attending  to 
two  things  at  the  same  time.  Employment,  in  any  mechanic  or  manu- 
al occupation  whatever,  engrosses  the  whole  attention,  and  of  course, 
drives  away  all  other  reflections,  and  a  man  employed  in  making  a 
pair  of  shoes  in  a  Penitential  y,  very  soon  forgets  that  he  is  in  a  Peni- 
tentiary, and  ordinarily,  is  no  doubt  quite  as  happy  as  he  would  be  any 
where  else  in  the  same  employment.  When  his  day's  work  is  done, 
he  is  fatigued  it  is  true,  but  this  is  not  an  evil  or  a  punishment,  and  even 
if  it  was,  he  is  not  more  fatigued  than  the  same  labour  would  have  made 
him  any  where  else,  nor  more  so  than  nine-tenths  of  the  community, 
who  have  committed  no  oflfence,  and  probably  not  more  so  than  it 
would  have  been  necessary  for  him  to  be,  had  he  committed  no  offence. 
In  consequence  of  his  fatigue,  he  eats  heartily  and  sleeps  soundly,  the 
two  greatest  comforts  and  blessings  an  uneducated  man  can  hope  to 
enjoy  in  this  world,  of  labour  and  toil. 

One  principal  object  of  the  Penitentiary  System  then,  is  defeated  by 
the  very '  means  adopted  for  its  accomplishment,  and  the  only 
punishment,  a  criminal  suffers  for  his  offence  against  society^ 
is  the  disgrace  of  being  in  the  Penitentiary,  (which  he  probably 
does  not  value  a  straw,)  and  the  restraint  upon  his  liberty,  which,  in  a 
very  short  time  he  becomes  accustomed  to,  and  totally  disregards. 
Such  we  know  to  be  the  case,  in  point  of  fact,  from  observation  ;  and 
such  I  say  we  had  reason  to  suppose  would  be  the  case,  from  the  known 
laws  of  the  human  mind.  This  is,  however,  rather  a  defect  than  an  evil 
in  the  present  System ;  but  there  are  positive  evils,  vastly  more  impor- 
tant than  all  these  mere  defects. 

Man  we  know  is  a  creature  of  habit.  He  has  been  called  a  bundle 
of  hMts.  These  habits  are  easily  formed  at  all  periods  of  his  life,  and 
when  formed,  they  are  not  easily  changed.  The  only  difficulty  in 
I  forming  a  habit,  is  the  pre-exisience  of  a  habit  inconsistent  with  the  ha- 
j  bit  wished  to  be  formed.    We  know,  also,  that  the  strongest  minds 


44 


can  with  diffirulty  withstand  the  shocii  of  sudden  changes,  and  it  has 
often  been  said  tliat  tiic  human  mind  is  much  more  liable  to  be  discon- 
certed and  thrown  from  its  proper  equipoise,  by  sudden  good  than  by 
sudden  bad  fortune.  A  long  habit  of  restraint,  disqualifies  a  man  to 
act  without  the  restraint.  Let  these  laws  of  the  human  mind  be  ap- 
plied to  the  tenants  of  our  Penitentiaries,  and  see  what  the  consequen- 
ces will  be.  A  man  has  been  confined  in  a  Penitentiary  five  or  ten 
years. — His  will  has,  during  that  period,  been  in  subjection  to  the  will 
of  another. — He  has,  during  that  period,  necessarily  formed  habits 
suited  to  a  Penitentiary,  and  entirely  unsuited  to  the  world,  or  to  per- 
sonal liberty,  and  these  hahits,  as  may  well  be  supposed,  have  become 
strongly  rooted.  All  at  once,  his  restraints  are  thrown  off  — He  is  set 
at  liberty,  and  turned  into  the  world  to  provide  for  himself.  Instead 
of  being  subject  to  the  will  of  another,  as  he  has  long  been  accustomed 
to  be,  he  is  left  to  his  own  will,  to  which  he  is  not  accustomed.  Is  it 
rational  to  expect  a  man  to  preserve  a  proper  equilibrium  of  mind  un- 
der such  a  shock  .''  Can  it  be  expected  by  any  man  who  has  any 
knowledge  of  the  laws  of  the  human  mind,  that  a  man,  under  such  cir- 
cumstances, however  good  his  intentions  may  be,  can  go  steadily  to 
work  and  provide  for  himself?  It  matters  not  that  he  has  lived  in  the 
world  before,  and  once  knew  how  to  provide  for  himself  by  his  own 
industry.  Since,  then,  his  mind  has,  according  to  the  laws  of  nature, 
accommodated  itself  to  a  different  state  of  things,  he  has  formed  new 
habits  inconsistent  with  his  present  condition,  and  forgotten  how  to  be 
free  ;  and  yet  he  is  required  to  be  free,  and  to  conduct  himself  with 
the  prudence  and  discretion  of  a  free  man — in  other  words,  he  is  re- 
quired to  act  in  direct  violation  of  every  known  law  of  the  human  mind. 
Is  it  not  far  more  rational  to  expect,  that  such  a  man  will  immediately 
return  to  the  paths  of  vice,  and  again  become  the  tenant  of  a  Penilen. 
tiary?  Under  such  a  state  of  things,  is  it  surprising  that  crimes  in- 
crease in  proportion  as  our  Penitentiaries  empty  out  their  tenants  upoi 
the  community  Is  it  surprising  that  our  Penitentiaries  are  .'5o  man \ 
mansions  of  vice  and  crime  ?  We  see  this  same  principle  operating 
throughout  this  part  of  the  country,  and  producing  the  same  effect  in 
regard  tojnanumitted  slaves,  and  there  is  also  the  same  mental  blind- 
ness to  the  law  of  man's  nature,  which  ^produces  the  effect.  A  man 
has  a  large  number  of  healthy,  industrious,  moral  slaves,  of  different 
ages,  from  twenty-one,  to  A^rty-fivc.    On  his  death  bed,  he  sets  them 


45 


all  free,  with  the  most  solemn  exhortations  to  be  industrious  and  mor- 
al, and  receives  from  them  the  most  solemn  promises  of  obedience  He 
gives  them  his  blessing,  and  dies.  In  the  course  of  a  short  time,  nine 
out  of  ten  of  these  slaves,  so  industrious  and  moral  before,  become  vag- 
abonds, and  one  half  of  them  perhaps,  get  into  the  Penitentiary,  and  all 
the  neighborhood  immediately  and  perpetually  exclaim,  "  see  the  ef- 
fects of  manumission  !  The  blacks  are  not  capable  of  being  free,  and 
providing  for  themselves. — They  are  an  inferior  order  of  beings,  and 
fit  only  to  be  slaves  !"  And  this  they  will  maintain  in  opposition  to 
reason  and  authority,  although  they  see  a  multitude  of  instances,  of 
blacks,  who  have  been  born  free,  and  educated  with  the  expectation  of 
being  free,  who  make  as  industrious,  sober,  good  citizens,  as  any  in  the 
country. 

Although  every  man  is  sensible  of  the  force  of  habit,  from  his  own 
experience,  yet  we  are  all  too  apt  to  overlook  it,  or  make  no  allowance 
for  it  in  others  ;  and  our  legislators,  in  forming  our  penal  codes,  seem 
never  to  have  reflected  that  there  was  any  such  thing  as  habit ;  but  to 
liave  considered  man's  will  to  be,  under  all  circumstances,  equally  free 
to  do  right  or  wrong,  and  that  no  greater  effort  is  required  for  a  man, 
whose  will  has  been  in  subjection  to  another  for  ten  years,  to  go  volun- 
tarily to  work  and  provide  for  himself,  than  if,  during  that  period,  he  had 
been  free  and  voluntarily  industrious.  But,  in  my  humble  judgment, 
it  is  as  irrational  to  expect  a  man,  who  has  been  ten  years  confined  in 
a  Penitentiary  to  hard  labour,  at  once  to  become  voluntarily  industrious, 
when  free,  as  it  would  be  to  expect  a  savage  of  our  western  wilderness, 
at  once  to  assume  the  manners  and  habits  of  an  industrious  citizen, 
merely  on  having  the  advantages  of  civilization  described.  From  the 
foregoing  observations,  I  deduce  the  following  propositions. 

1st.  That  a  man  thoroughly  acquainted  with  human  nature,  but  un- 
acquainted with  our  Penitentiary  Systems,  never  could  infer  from  our 
Penitentiaries  themselves,  what  their  object  was. 

2d.  That  confinement  in  a  Penitentiary,  is  no  punishment  at  all,  to 
at  least  one  half  of  those  who  are  put  there  for  punishment. 

3d.  That  confinement  ordinarily  ceases  to  be  a  punishment  to  all,  be- 
fore a  tenth  part  of  their  time  is  expired. 

4th.  That  a  long  confinement  in  a  Penitentiary,  utterly  disqualifies  a 
man  for  gaining  an  honest  livelihood  by  his  own  voluntary  industry  ; 


4^ 


and  that,  therelore,  his  only  alternative,  when  turned  out,  is  to  steal  or 
starve. 

Admitting  this  to  be  the  true  state  of  the  case,  and  that  the  evils  of 
the  present  System  are  real,  and  not  imaginary ;  the  next  inquiry  is,  in 
what  way  can  they  be  remedied.  This  is  a  much  more  difficult  branch 
of  the  subject  than  that  of  pointing  out  the  evils  of  an  existing  es- 
tablishment. I  shall,  however,  attempt  to  suggest  improvements,  rely- 
ing upon  your  indulgence,  should  I  not  be  successful. 

I  would,  in  the  first  place,  suggest  the  propriety  of  altering  the  law 
respecting  children  and  youth,  so  as  never  to  inflict  either  a  corporal 
or  a  disgraceful  punishment  upon  such  persons.  Although  from  seven 
to  fourteen,  a  child  may,  according  to  the  common  law,  be  doli  capax, 
yet  if  they  commit  crimes,  it  is  more  the  fault  of  those  who  have  had 
their  training  than  their  own,  and  there  can  be  little  doubt,  but  that 
with  proper  instruction  and  government,  they  may  be  reformed. 
When  a  child  or  youth,  under  sixteen  or  eighteen,  commits  a  crime, 
instead  of  inflicting  that  punishment  provided  for  men,  I  would  have 
them  taken  from  their  parents  and  placed  under  the  care  of  some  good 
master,  who  should  instruct  them,  and  teach  them  some  mechanic  art. 
Our  temples  of  justice  are  too  often  profaned  by  arraigning  children 
and  youth,  convicting  and  punishing  them  as  men.  In  forming  a 
Penal  Code,  the  great  object  should  be  to  adapt  the  punishment  to  the 
laws  of  the  human  mind  in  such  a  manner  as  to  produce  the  desired 
efiect,  with  the  smallest  quantity  of  sufiering.  We  must  not,  however, 
from  false  notions  of  humanity,  stop  short  of  producing  the  desired 
effect ;  for,  in  that  case,  the  punishment  inflicted  becomes  wanton 
cruelty.  As  far  as  practicable,  a  punishment  should  be  provided  to 
suit  the  character  of  every  criminal.  In  a  perfect  system  of  punish- 
ment, the  penalty  would  be  applied  to  the  personal  character  of  the 
ofiender,  and  not  to  the  offence  or  specific  crime  committed.  In  this 
way,  infinite  wisdom  would  punish  guilt.  But  such  a  system  can 
never  be  adopted  by  short-sighted  man.  Human  laws  must  be  gene- 
ral and  equal,  as  it  regards  the  specific  crime,  without  respect  to  the 
character  of  the  criminal.  But  altheugh  penal  laws  must  regard  the 
crime  committed,  without  reference  to  the  personal  character  of  the 
offender  ;  still  there  remains  great  latitude  to  adapt  the  punishment  to 
the  character  of  the  criminal,  by  observing  the  character  of  those  who 
usually  commit  certain  oflences,  and  providing  a  punishment  suited  to 


47 


the  character  of  that  class  of  persons.  We  find,  for  instance,  that 
persons  who  usually  commit  petty  larceny,  and  the  other  minor  and 
meaner  ofTences,  are  totally  insensible,  or  nearly  so,  to  the  loss  of  cha- 
racter, and  are  inaccessible  by  any  other  means  than  corporal  punish- 
ment. For  these  offences,  therefore,  I  would  provide  a  punishment 
suited  to  the  character  of  such  persons,  and  if  other  characters  com- 
mitted these  offences,  they  must  take  the  consequences,  and  suffer  the 
punishment.  I  would  therefore  rebuild  the  whipping-post  and  pillory, 
for  these  offences,  or,  what  is  the  same  thing,  for  this  class  of  people. 
The  puuishment  is  then  soon  over,  without  expense  or  trouble  to  the 
stale,  and  in  a  manner  much  more  likely  both  to  work  reformation, 
and  serve  as  a  terror  to  others,  than  that  of  confining  them  in  a  peni- 
tentiary, which  to  such  persons,  is  often  neither  a  punishment  nor  a 
terror,  but  rather  a  school  of  vice.  This  corporal  punishment  would, 
besides,  have  the  effect  to  stamp  a  character  of  meanness  upon  these 
offences,  (the  most  numerous  that  are  committed,)  which  would  cause 
even  villains  to  despise  and  disdain  to  commit  them,  for  rogues  have 
their  laws  of  honour  and  notions  of  dignity.  There  is  no  occasion  to 
inflict  corporal  punishment  with  a  degree  of  shocking  severity,  which 
shall  excite  the  commiseration  of  the  beholder<».  To  mangle  a  man's 
body  with  a  lash  is  wanton  cruelty — not  wholesome  punishment.  Al- 
though I  never  saw  the  lash  or  the  bastinado  inflicted,  yet  from  the 
accounts  I  have  heard  and  read,  1  presume  the  bastinado  never  excites 
those  feelings  of  disgust  and  horror,  that  a  severe  whipping  does. 
Certain  I  am,  however,  that  severe  corporal  punishment  may  be  in* 
flicted  without  mangling  the  body,  but  whether  the  lash  is  the  most 
suitable  instrument,  I  am  not  prepared  to  say.  If  these  persons  re- 
peated their  offenses,  and  were  found  incorrigible,  I  would  rank  them 
among  a  higher  grade  of  criminals,  to  bejtreated  as  hereafter  described. 

The  next  class  of  persons  for  whom  I  would  provide  punishment, 
are  those,  who,  although  they  have  not  moral  principle  enough  to  re- 
strain them  from  the  commission  of  crimes,  have,  nevertheless,  some 
regard  to  character,  and  are  liable  to  disgrace.  Such  are  violators  of 
public  trust,  house-breakers,  cheats,  swindlers,  counterfeiters,  horse- 
thieves,  &c.  kc.  This  class  of  criminals  are  usually  from  the  higher 
orders  of  society,  and  seldom  commit  petty  larceny,  or  any  of  the 
meaner  crimes.  These  people  have  some  regard  to  character,  and 
are  susceptible  of  punishment  by  disgrace,  and  it  is  not  therefore  ne- 
cessary to  rely  alone  on  corporal  punishment  for  them.    They  are 


48 


also  capable  of  being  broufjlit  to  reflection  and  penitence.  For  them, 
therefore,  I  would  provide  a  Peuilentiary,  in  the  true  sense^.of  the 
word — not  a  work-shop,  but  a  real  Penitentiary.  In  it  the  cheerful 
sound  of  the  hammer  of  industry  should  never  be  heard.  The  tenants 
of  it  should  remain  in  perfect  idleness  and  solitude.  They  should 
see  no  human  being  but  their  keeper  ;  unless,  indeed,  it  might  per- 
haps be  well,  occasionally  to  expose  them  to  public  view,  for  the  pur- 
pose of  humiliation.  They  should  be  cloathed  in  the  garments  of 
humiliation  and  disgrace.  They  should  wear  chains,  not  only  for  their 
safety,  but  as  a  badge  of  their  character.  It  would  be  well  to  keep 
them  in  darkness  as  much  as  possible ;  but  I  am  told  a  man  cannot 
endure  total  darkness  more  than  about  twenty  days  at  a  time,  before 
he  becomes  deranged.  As  a  principal  object  is,  to  operate  upon  their 
pride  of  character,  I  would  have  an  official  account  of  their  conviction 
as  widely  circulated  as  possible,  through  the  public  papers.  This 
should  contain  a  description  of  their  persons,  their  place  of  birth, 
and  parentage.  To  many  this  would  be  a  most  terrible  punishment 
— and,  although  it  might  wound  the  feelings  of  relations,  yet  this 
must  be  endured  for  the  public  good — and  it  is  generally  the  fault  of 
parents,  in  a  great  measure,  that  their  children  become  criminals,  and 
they  therefore  deserve  to  bear  a  part  of  the  punishment.  Confine- 
ment in  this  Penitentiary  should  never  be  long  enough  to  destroy  those 
habits  which  are  necessary  to  enable  a  man  to  procure  a  livelihood 
by  his  own  industry  ;  nor  long  enough  for  him  to  acquire  other  habits 
incompatible  with  his  freedom  and  voluntary  industry.  I  would, 
therefore,  never  have  a  person  confined  in  this  Penitentiary  more 
than  six  months,  and  in  most  cases  not  near  so  long.  The  principal 
object  is  disgrace  and  humiliation,  and  this  is  as  efTeclually  accom- 
plished in  a  month  as  in  a  year.  If  this  class  of  criminals  repeated 
their  crimes,  and  were  found  incorrigible,  I  would  rank  them  among 
a  still  higher  grade  of  criminals,  to  be  treated  as  follows  : 

For  the  third  grade  of  criminals,  I  would  provide  a  perpetual  work- 
house, somewhat  upon  the  plan  of  our  present  Penitentiaries.  I  call 
it  a  perpetual  work-house,  because  I  would  have  none  sentenced  to  it 
but  for  life.  It  is  designed  for  incorrigible  ottenders,  for  whose  re- 
formation there  is  no  hope,  and  whose  characters  render  it  dangerous 
to  suffer  them  ever  to  be  let  loose  again  upon  society.  I  would  set 
them  to  work  to  prevent  them  from  being  a  burden  to  the  state,  and 
as  they  are  never  again  to  be  let  loose  upon  society,  it  is  of  little  nn- 


49 


portance  what  habits  they  form,  nor  can  there  be  any  objection, to 
their  enjoying  as  much  happiness  as  is  consistent  with  their  safety. 
There  can  be  no  object  in  punishing  them  with  idleness  and  solitude. 
Into  this  perpetual  work-house,  I  would  in  the  first  place,  put  all 
those  incorrigible  offenders,  who  had  repeated  their  crimes  after  ha- 
ving been  at  the  whipping  post,  or  in  the  penitentiary.  I  would  also 
put  into  it  persons  guilty  of  murder  in  the  second  degree,  where  that 
idle  and  ridiculous  distinction  exists — also,  those  guilty  of  arson,  of 
rape,  of  man-stealing,  of  highway  robbery,  of  perjury,  and  perhaps 
counterfeiters  for  the  first  offence.  Indeed,  all  persons  who  have 
evinced  that  incorrigible  depravity  of  heart,  which  renders  them  dan- 
gerous to  society,  should  be  sentenced  to  this  perpetual  work-house. 
To  it  I  would  sentence  none  but  for  life ;  since  to  confine  them  there 
for  a  term  of  years  and  then  turn  them  upon  society,  is  to  make  them 
felons  by  a  regular  course  of  discipline.  It  might  perhaps  be  well 
to  make  some  provision  for  discharging  them,  upon  condition  that 
their  friends  would  give  adequate  security  that  they  should  immediate- 
ly depart  the  couutry,  and  never  return.  They  sh<  uld  be  required 
not  merely  to  leave  the  state,  but  the  country,  for  one  state  ought  not 
to  banish  its  felons  to  the  other  states. 

The  last  grade  of  crimes  should  be  capital :  and  whether  this  should 
include  any  but  murder,  I  am  in  doubt.  Much  has  been  and  may  be 
said  on  both  sides  of  the  question  ;  but  as  the  arguments  are  faimiiar 
to  every  one,  it  is  unnecessary  to  repeat  them.  1  am,  however,  deci- 
dedly of  opinion,  that  murder  should  be  punished  with  dtath. 

Among  other  evils  of  the  present  system,  is  its  enormous  expense, 
and  the  system  I  have  suggested,  I  conceive,  would  lessen  that  expense 
at  least  one  half. 

I  have  thus  stated,  very  imperfectly  I  fear,  some  of  my  notions  of 
the  evils  of  our  present  Penitentiary  Systems,  and  taken  the  liberty  of 
suggesting  some  alterations  which  to  me  appear  well  calculated  to 
improve  them.  I  have  not,  probably,  gone  so  much  into  detail  as 
misht  be  necessary  for  the  public,  but  I  am  writing  to  gentlemen  to 
whom  a  hint  is  as  good  as  a  volume. 

I  will  also  take  the  liberty  of  making  a  few  general  observations 
upon  the  present  administration  of  the  laws,  which,  in  my  opinion, 
has  a  very  bad  effect  upon  the  community. 

The  great  object  to  be  attained  in  the  administration  of  penal  laws, 

G 


60 


is  certainty  in  the  detection  of  criminals,  and  certainty  in  their  pun- 
islinient.  The  object  of  this  certainty  is  not  so  much  th*-  vindirtive 
punishment  of  the  offender,  (for  that  does  not  lessen  ihf  evil  the  com- 
munity suffers  from  the  crime  which  has  been  committed,)  as  the  pre- 
vention of  others  from  offending.  Very  few  would  commit  rimes,  if 
they  knew  to  a  certainty  that  they  should  be  detected  and  punished. 
Every  rational  being,  before  he  deliberately  commits  a  crime,  must 
necessarily  make  a  calculation  of  the  chances  of  escaping  punishment ; 
and  therefore  every  criminal  who  escapes  punishment,  in  whatever 
manner,  or  from  whatever  cause,  affords  additional  eucourageme nt  to 
others  to  violate  the  laws  ;  and  where  a  large  portion  of  those  who 
commit  crimes  escape  punishment,  as  is  at  present  the  case,  the  temp- 
tation and  encouragement  to  commit  crimes  become  very  great,  and 
it  is  not  surprising  that  they  annually  increase. 

There  is  at  present  a  very  great  laxity  and  carelessness  in  our  pub 
lie  officers,  especially  in  the  middle  and  southern  states,  so  far  as  my 
observation  has  extended,  in  bringing  criminals  to  justice  ;  and  there 
is  a  most  deplorable  disposition,  I  may  almost  say  propensity,  :n  the 
public,  to  permit  criminals  to  escape  punishment.  This  proceeds, 
in  some  measure,  from  false  principles  of  humanity.  Every  man 
seems  to  say  to  himself — "true  this  man  has  committed  a  crime,  and 
nay  deserve  punishment ;  but  punishing  him  will  not  remedy  the 
injury  ;  it  is  a  pity  to  bring  disgrace  and  suffering  on  the  innocent 
friends  of  the  unfortunate  criminal,  and  it  is  besides  an  affair  of  the 
public,  not  of  mine,  and  1  am  not  therefore  required  to  take  any  pains 
to  bring  him  to  puuishment."  It  is  almost  invariably  the  case.  I 
have  witnessed  it  often,  that  if  a  criminal,  at  all  respectable  in  his 
appearance,  or  if  he  has  any  friends  who  are  respectable,  is  arraigned 
at  the  bar,  the  sympathies  of  the  whole  audience  are  immediately 
interested  in  his  favour,  and  every  one  is  ready  and  willing  to  do  eve- 
ry thing  in  his  power  to  secure  him  from  punishment;  and,  if  they 
are  successful,  no  matter  how  manifest  the  guilt  of  the  accused,  they 
seem  to  exult  in  having  rescued  a  victim  from  that  inexorable  tyrant 
the  law.  So  powerful  is  this  feeling,  and  so  often  successful  in 
rescuing  the  t-uilty  from  punishment,  that,  according  to  my  observa- 
tion, the  fart  of  a  man's  suffering  a  disgraceful  punishment  does  not 
prove  that  he  is  more  guilty  ihan  many  others  who  are  not  punished, 
but  only  that  he  has  fewer  friends. 

People  who  reason  and  act  in  this  way,  never  reflect  that  every 


51 


criminal  who  escapes  punishment,  from  whatever  cause,  affords  exam- 
ple aad  encouragement  to  others  to  commit  crimes,  and  that  a  prin- 
cipal object  in  punishing  criminals  is  to  deter  others  from  offending. 

Some  of  the  facilities  for  escaping  punishment  might  be  easily 
remedied,  and  with  this  view  I  would  deprive  the  Governor  of  the 
power  of  pardoning,  and  of  granting  a  nolle  prosequi.  1  consider 
this  power  to  be  attended  with  most  mischievous  consequences,  and 
should  be  taken  away  entirely.  In  the  first  place,  this  must  be  a 
most  unpleasant  power  for  an  honest  and  a  humane  man  to  exercise. 
In  the  next  place,  there  can  be  no  hope,  in  the  present  slate  of  so- 
ciety, that  it  will  ever  be  exercised  with  rigor  or  impartiality.  Those 
who  have  strong  friends  will  obtain  a  nolle  prosequi,  or  a  pardon,  be 
their  crimes  small  or  great.  Those  who  have  not  friends  will  never 
obtain  either  the  one  or  the  other.  But  these  are  by  no  means  the 
worst  consequences  of  this  power.  It  is  the  anchor  of  hope  to  the 
accused  and  the  convict;  and  there  is  very  little  likelihood  of  peni- 
tence or  reformation,  so  long  as  there  is  hope  of  escaping  punishment. 
A  single  spark  of  hope  will  support  a  mind,  which,  without  if,  would 
sink  into  contrition  and  repentance.  It  should,  therefore,  be  a  prin- 
cipal object  to  extinguish  every  ray  of  hope  of  escape,  in  the  mind  of 
the  accused  criminal,  and  of  the  convicted  felon. 

The  powerful  efforts  that  were  made  to  rescue  Hutton  and  Hull,  the 
mail  robbers  and  murderers,  from  punishment,  is  one  among  a  thou- 
sand cases  that  might  be  cited  to  show  ihe  evil  consequences  of  this 
power  of  pardoning.  The  effects  of  such  efforts  upon  the  community, 
even  though  unsuccessful,  are  most  pernicious.  There  is  nothing,  in  my 
opinion, which  has  more  influence  in  demoralizingsociety :  itaccustoms 
people  to  advocate  and  defend  guilt,  by  getting  their  feelings  enlisted 
on  the  side  of  the  guilty  There  were  thousands  of  perS'  ns,  of  both 
sexes,  insensibly  led  first  to  palliate  and  then  to  defend  the  guilty 
murderer,  Hull,  by  having  their  feelings  enlisted  in  his  favour,  with 
a  hope  of  being  instrumental  in  saving  his  life.  There  were  thou- 
sands of  persons,  male  and  female,  in  Baltimore,  Philadelphia,  and  I 
believe  in  New-York,  who  signed  a  memorial  to  the  Governor  to  par- 
don him,  and  it  was  really  shocking  to  a  man,  who  reflected  upon  the 
consequences  of  these  things,  to  see  with  what  ingenuity  and  earnest- 
ness, respectable  people,  of  both  sexes,  palliated  and  defended 
the  crime  of  that  monster,  which  ought  never  to  have  been  mentioned 


52 


but  with  execration  and  horror.  The  same  thing  is  constanlly  re- 
pealed in  this  state,  although  upon  a  smaller  scale,  with  every  crimi- 
nal condemned  either  to  the  penitentiary  or  the  gallows,  who  has  any 
respectable  friends.  To  prevent  every  thing  of  the  kind,  both  upon  a 
great  and  small  scale,  I  would  take  away  the  power  to  pardon.  If 
there  must  be  such  a  power  somewhere,  leave  it  with  the  legislature: 
there  would  be  very  little  danger  that  they  would  ever  exercise  it. 
There  should  also  be  as  little  discretion  as  possible  left  with  the  court 
in  affixing  the  penalty  to  tiilitrent  offences.  1  have  known  a  man  to 
be  sentenced  to  the  penitentiary  for  ten  years,  for  stealing  a  piece  of 
calico  not  worth  more  than  ten  dollars,  without  any  proof  of  his  being 
an  old  offender;  and  I  have  known  a  man  to  be  sentenced  only  ten 
years  to  the  same  penitentiary,  who  had  committed  a  most  atrocious 
murder.  Such  inequality  ought  not  to  be,  and  the  improvements 
which  I  have  suggested  will  necessarily  leave  very  little  discretion 
with  the  court. 

A  great  deal  of  mischief  has  been  done  in  this  state  and  in  Penn- 
sylvania, and,  for  ought  I  know,  in  some  of  the  other  states,  by  at- 
tempting to  improve  the  common  law  of  homicide.  The  attempt  to 
make  two  species  of  murder,  when  there  is  in  the  nature  of  things 
but  one,  and  punishing  the  one  with  death  and  the  other  with  impri- 
sonment, has  had  the  effect  of  reducing  all  or  nearly  all  murders  to 
the  second  grade,  for  it  is  seldom  that  a  jury  will,  under  any  circum- 
stances, find  a  man  guilty  of  murder  in  the  first  degree.  The  common 
law  of  homicide  is  as  perfect  as  the  reason  of  man  can  make  it,  and 
the  only  rational  distinction  of  felonious  homicide  is  iuto  murder  and 
manslaughter,  as  the  common  law  has  established  it.  Ihere  are, 
however,  some  cases  of  constructive  murder  in  England,  which  are 
rigorous  and  unjust.^  But  this  is  the  fault  of  other  branches  of  their 
law  and  not  of  that  relating  to  homicide.  Where  stealing  a  chicken 
is  a  capital  offence,  if  a  man  in  attempting  to  steal  a  chicken  uninten- 
tionally kills  a  man,  it  is  as  perfectly  consistent  with  the  code  of  laws 
thai  he  should  be  punished  as  a  murderer,  as  it  is  that  a  man  should 
be  punished  as  a  murderer,  who  in  attempting  to  murder  A,  uninten- 
tionally kills  B.  .*<ome  of  these  cases  of  constructive  murder  in  Eng- 
land, are  rigorous  and  unjust;  and  some  of  our  legislators  have  sup- 
posed that  the  common  law  of  homicide  required  remedy,  wilhoat 
ever  reflecting  that  the  law  would  be  different  in  this  country,  without 


53 


any  legislative  interference,  inasmuch  as  stealings  is  not  a  capital  of- 
fence by  uur  laws,  and  therefore  homicide  committed  accidentally,  in 
attempting  to  steal,  would  not  be  murder. 

I  have  thus,  gentlemen,  stated,  I  fear  more  in  detail  than  you  will 
have  patience  to  read,  some  of  my  notions  on  the  main  question  pro- 
posed. My  opinion  on  the  other  questions  will  be  readily  deduced 
from  what  I  have  said  upon  this.  It  will  be  highly  gratifying  to  me, 
should  I  be  so  fortunate  as  to  be  successful  in  my  feeble  attempt  to 
assist  you  in  your  arduous  undertaking. 

With  a  most  sincere  and  hearty  wish  for  a  successful  termination 
of  your  labours,  upon  this  interesting  and  important  subject, 
1  have  the  honor  to  be 

Your  most  obedient,  bumble  servant, 

D.  RAYMOND. 

Messrs.  C.  D.  Colden, 
P.  A.  Jav, 

J.  MiLNOR, 

T.  Eddy, 

C.  G.  Haines. 

From  the  Honorable  ROBERT  GOODLOE  HARPER. 

Baltimore,  Oct.  20,  1820. 

DEAR  SIR, 

I  was  in  hopes  of  being  able,  before  now,  to  make  a  communi- 
cation to  you,  on  the  subject  of  the  Penitentiary  System,  in  answer  to 
Lhe  circular  letter,  which  I  sometime  ago  received,  from  the  Committee 
Df  which  you  are  Chairman  ;  but  various  interruptions  have  hitherto 
delayed  the  execution  of  my  purpose.  I  have  bestowed  much  reflec- 
lion  and  attention  on  this  interesting  matter,  both  now  and  heretofore, 
md  have  recently  made  such  enquiries  as  were  in  niy  power,  for  its 
further  elucidation.  As  soon  as  possible,  I  will  do  myself  the  honour 
)f  communicating  the  result  to  you.  In  the  mean  time,  I  beg  you  to 
tccept  the  assurance  of  those  sentiments  of  respect,  with  which 
I  have  the  honor  to  be,  ' 
Dear  Sir, 

Your  most  obedient  servant, 

ROBERT  G.  HARPER. 

Cadwallader  D.  Golden,  Esq. 

i 


NEW-HAMPSHIRE. 
Letter  from  the  Hon.  WILLIAM  PLUMER,  late  Gtvemor  of  New- 
Hampshire.  > 
Epping,  (N.  H.)  Sept.  21,  1820.  ' 

SIR, 

A  few  days  since,  I  received  a  polite  letter,  signed  by  you  and 
the  otlier  gentlemen  who  coupose  the  Committee  of  the  city  of  New- 
York,  appointed  to  prepare  "a  general  Report  on  the  results  and  ten- 
dency of  the  Penitentiary  System."  You  suggest  a  number  of  en- 
quiries  for  consideration,  and  request  my  opinion  upon  them. 

The  subject  which  has  engaged  your  attention,  is  important;  and 
the  cause  of  humanity  has  a  deep  interest  in  the  result.  Crimes  will 
be  perpetrated,  and  offences  committed,  so  long  as  man  and  society  ■ex- 
ist. It  is,  therefore,  more  important  that  good  men  and  wise  men,  in- 
stead of  wasteing  their  time  in  lamenting  the  follies  and  crimes  of  the 
vicious,  and  wishing  their  reformation,  should  adopt  efficacious  meas- 
ures to  suppress  crimes  and  offences,  by  a  course  of  punishment,  at 
which  humanity  has  no  cause  to  revolt,  and  which  ought  to  convince 
offenders  themselves,  that  their  own  interest  requires  their  reforma- 
tion. 

From  my  own  knowledge  of  the  effects  of  the  Penitentiary  System 
in  New-Hampshire,  and  from  information  received  from  other  states. 
I  am  fully  convinced,  that  it  has  more  effectually  suppressed  crimes 
than  any  mode  of  punishment  previously  established.  I  should,  there- 
fore, regret  that  the  friends  of  Penitentiary  establishments  should  aban- 
don them,  or  that  their  enemies  should  induce  the  legislatures  of  the 
states  to  neglect  them. 

Our  State  Prison,  or  Penitentiary  House,  has  been  built  and  occupied 
more  than  eight  years.  Previous  to  its  establishment,  I  had  strong 
doubts  of  its  utility,  but  experience  has  convinced  me,  that  it  is  prefera- 
ble to  our  former  system.  The  punishments  inflicted  upon  the  offen. 
ders,  are  not  only  such  as  the  people  approve,  but  the  offences  are  such 
as  in  their  opinion,  render  the  criminals  dis^racc/w?;  which,  in  many 
instances,  was  not  the  case,  when  the  culprit  was  confined,  in  a  state 
of  idleness,  in  the  same  gaol,  though  in  a  different  room,  with  unfortu- 
nate debtors,  or  petty  offenders.  The  circumstance  of  confining  none 
but  criminah  in  the  same  establishment,  has  a  powerful  tendency  to 
impress  upon  the  great  mass  of  the  people,  the  distinction  between 


55 


•imes  and  petty  offences— and  to  restrain  them  from  committing  die 
rmer.  The  culprits  are  now  compelled,  by  hard  labour,  to  make 
»me  amends  to  the  society  they  injured.  Their  punishment  is  more 
?rtain,  as  escapes  are  much  less  frequent  than  under  the  former  sys- 
•m.  There  are,  also,  better  means  of  separating  the  young  from  the 
d  hardened  offenders,  than  in  the  county  prisons.  And  considering 
le  relief  such  establishments  afford  to  the  counties  from  the  support  of 
le  offenders,  I  am  persuaded,  that,  with  prudent  management,  they 
ill  not  materially  increase  the  public  expenditure.  This  fact  appears 
ibstantiated,  by  the  changes  introduced  into  the  establishment,  in  this 
ate,  in  the  course  of  the  three  last  years.  If  Penitentiary  establish- 
lents  are  not  schools  of  reform,  they  will,  at  least  for  a  period, 
2cure  the  public  against  the  depredations  of  those  who  are  confined 
fithin  their  walls. 

Previous  to  the  establishment  of  the  state  prison,  in  18 12,  there  were 
1  New-Hampshire,  eight  offences  that,  by  law,  subjected  the  offender 

0  capital  pnnishment ;  but  in  that  year,  they  were  reduced  to  two — 
reason  and  wilful  homicide.  If  this  benevolent  change  in  our  laws  has 
lot  diminished,  it  has  not  increased,  the  number  of  crimes.  A  san- 
;uinary  law,  a  law  opposed  to  the  feelings  of  humanity,  cannot  be  exe- 
uted.  When  death  is  the  punishment  to  be  inflicted,  jurors  will  ac- 
[uit,  where,  had  the  punishment  been  milder,  they  would  convict,  and 
he  criminal  have  suffered  for  his  offence. 

If  the  Penitentiary  System  should  be  abandoned,  I  know  no  other 
hat  can  supply  its  place.    To  doom  the  crioiinal  to  a  life  in  chains 

1  more  disgusting  to  humanity,  if  not  more  expensive,  than  condem- 
ing  him  to  labour  for  life  in  a  PenitenticU-y,  where  he  may,  without 
:hains,  be  equally  as  well  secured.  And  as  to  transporting  criminals 
0  a  distant  country,  I  know  of  no  rightful  authority  which  one  nation 

,  as  to  send  their  criminals  and  outcasts  into  the  territories  of  another. 
To  send  them  to  some  desolate  island  or  country,  if  such  can  be  found, 
till  they  must  live  in  the  neighborhood  of  some  other  people  ;  and  it 
'ould  be  an  act  of  injustice  in  us,  to  force  bad  neighbors  upon  them — 
n  act  which  cannot  be  justified  upon  the  principles  of  either  policy  or 
lorality.  .  For  a  nation,  or  a  state,  to  establish  a  settlement  composed 
f  criminals,  whom  they  consider  dangerous  to  the  well-being  of  socie- 
f,  appears  to  me  hostile  to  the  genius  and  principles  of  all  civil  insti- 
itions.    But  if  there  were  no  objections  arising  from  policy  and  mo- 


66 


>al  considerations,  to  the  transportation  of  criminals,  the  expense  would 
be  great,  and  if  carried  to  a  considerable  extent,  the  transportation 
would  be  impracticable. 

If  men  of  talents  and  information  would  devote  their  time  and  at- 
tention to  the  improvement  of  our  Penitentiary  System,  I  think  most 
of  the  objections  to  it  would  be  obviated,  and  the  nation  derive  much 
greater  benefit  from  the  establishment,  than  they  do  at  present.  Much 
care  and  sound  discretion  ought  to  be  exercised,  in  selecting  men,  who 
possess  the  peculiar  and  necessary  qualifications  for  the  good  govern- 
ment and  prudent  superintendance  of  those  institutions.  Much,  very 
much  indeed,  depends  upon  the  character,  disposition  and  capacity,  of 
those  officers.  A  good  law  may  be  administered  in  such  an  improper 
manner,  as  to  render  it  more  than  a  dead  letter — a  curse  to  society. 

Effectual  measures  should  be  adopted  to  separate,  in  the  Penitentia- 
ry, old  offenders  from  the  young  and  inexperienced ;  otherwise,  the  lat- 
ter, instead  of  being  reformed,  will  become  adepts  in  crimes,  and  when 
the  term  of  their  confinement  expires,  they  will  return  to  society  more 
wicked  and  abandoned  than  when  they  left  it. 

The  power  of  granting  pardons  to  convicts,  should  seldom  be  exer- 
cised.   The  certainty  of  punishment  has  a  great,  if  not  the  most  pow" 
erful,  influence  upon  the  wicked,  in  restraining  them  from  the  commis- 
sion of  crimes.    The  government  should,  therefore,  avoid  every  thing 
that  has  a  necessary  tendency  to  impair  the  force  of  that  certainty.  A 
hardened,  subtile  offender,  dead  to  moral  feelings,  calculates  upon  the 
many  chances  he  has  to  escape  punishment.    His  hopes  are  strong  tiia' 
he  shall  not  be  suspected — that  if  he  is  suspected,  he  shall  be  able  tu 
avoid  arrest — that  if  arrested,  proof  will  not  be  obtained  to  convict  him 
— if  convicted,  that  he  shall  be  pardoned.    That  spirit  of  benevolence, 
which  often  prompts  public  ofiicers  to  pardon  the  guilty,  does  honor  to 
the  heart,  but  it  impairs  the  security  of  society.    During  the  four  years  | 
I  was  governor  of  this  state,  I  pardoned  only  two  of  the  convicts  who 
were  confined  in  the  state  prison  ;  though  the  applications  for  the  first 
two  or  three  years,  were  numerous,  and  supported  by  the  recomnien-  j 
dations  of  many  respectable  characters.    I  did  not  consider  myself  at  ' 
liberty  to  question  the  propriety  of  the  opinion  of  the  court  who  rei 
dered  the  judgment;  I  believed  they  were  the  only  tribunal" competent 
to  pronounce  upon  the  innocence  or  guilt  of  the  accused  ;  and  that  their 
decision  ought  to  be  conclusive.    I  thought  it  ray  duty  to  pardon  a  con- 


57 


vict  who  was  insane ;  or  approached  a  state  of  idiotcy ;  or  when  sen- 
tenced only  for  a  term  of  years,  if  he  was  visited  with  sickness,  which 
from  the  want  of  free  air  and  better  accommodations,  would  probably 
terminate  in  death.  Of  the  convicts  whom  I  pardoned,  one  was  nearly 
in  a  state  of  idiotcy,  and  the  other,  the  physicians  and  officers  of  the 
prison  represented  to  be  of  the  last  class,  and  such,  from  his  feeble  ema- 
ciated state,  he  appeared  to  me ;  but  within  three  days  after  his  libera- 
tion, his  health  was  sound,  and  he  again  committed  felony. 

I  rejoice  that  the  business  of  preparing  a  general  Report  upon  the 
subject  of  the  Penitentiary  System  is  assigned  to  such  able  hands ;  and 
[  shall  esteem  it  as  a  favor  to  receive  a  copy  of  it,  when  published. 
I  have  the  honor  to  be, 
Respectfully, 
Sir, 

Your  obedient  servant, 

WILLIAM  PLUMER. 

Hon.  Cadwaladek  D.  Golden. 

Letter  from  the  Hon.  LEVI  WOODBURY,  one  of  the  Judges  of  the 
Supreme  Court  in  New-Hampshire. 

Amherst,  (N.  H  )  Oct.  7, 1820. 

SIR, 

While  on  the  present  circuit,  I  have  received  a  line  from  a  Commit- 
ee  on  the  Penitentiary  System ;  and  am  requested  in  a  postscript,  to 
brward  my  answer  to  you. 

In  reply  to  the  questions  which  they  have  had  the  politeness  to  ad- 
Iress  to  me,  I  have  leisure  to  make  only  a  few  very  general,  and  very 
i2isty  remarks. 

As  respects  the  effect  of  that  System,  which  is  the  first  enquiry,  I  en- 
ertain  a  decided  opinion  in  favour  of  it.  Not  on  account  of  its  reform- 
ig  power,  which  is  somewhat  questionable  ;  but  because  the  Peniten- 
aryCodeis  more  lenient  than  former  ones,  and,  though  in  some  pla- 
es  more  expensive,  yet  the  disproportion  here  is  not  very  great  and 
nderit  the  number  of  crimes  has  diminished. 

Before  its  introduction  here,  our  laws  punished  with  death — treason, 
lurder,  rape,  sodomy,  burglary,  arson,  robbery,  and  one  species  of 
1  )rgery.  Fines  and  imprisonment,  the  lash  and  the  pillory,  were  also 
pstewed  with  unsparing  severity,  on  minor  offences.    But  the  two  last 


H 


68 


modes  of  punishment  are  now  totally  abolished,  and  death  is  inflicted 
only  on  the  traitor  and  the  murderer. 

The  expenses  of  this  System  are,  to  be  sure,  greater  than  those  of 
the  summary  punishments  before  mentioned.  But  the  difference  is 
yearly  diminishing,  in  consequence  of  an  improved  economy,  derived 
from  experience,  in  the  management  of  our  state  prison.  Provisions 
are  purchased  cheaper — guards  and  directors  are  less  numerous — and 
the  labour  of  the  convicts,  being  farmed  out  to  individuds,  is  much 
more  productive. 

It  is  to  be  remembered,  also,  that  the  expenses  of  convictions  are  now 
less,  as  the  convict,  though  unreformed,  cannot  in  the  smaller  crimes, 
offend  so  often  as  formerly. 

In  relation  to  the  second  enquiry,  I  apprehend,  that  the  ends  of  the 
institution  in  this  country  have  in  part  failed ;  because  too  much  was 
expected  from  it.  The  reformation  of  the  convicts,the  expenses,  and 
the  number  of  offences  have  not  accorded  with  the  sanguinary  expecta- 
tions of  philanthropists. 

But  a  general  improvement  in  morals,  ought  not  to  have  been  anti- 
cipated, without  the  use  of  additional  means.  The  prisoners,  accord- 
ing to  the  enormity  of  their  crimes,  should  be  classed,  and  marked  with 
some  distinctive  badge.  They  should,  during  the  day,  be  kept  more 
quiet  and  secluded  from  either  society  or  conversation ;  and,  during  the 
night,  wholly  separated  from  each  other.  When  their  term  of  service 
expires,  they  should,  also,  to  prevent  temptation  to  commit  new  offen- 
ces, be  furnished  with  such  portion  of  their  labours  as  will  maintain 
them,  till  regular  employment  can  be  obtained. 

The  disappointment  as  to  the  expenses,  has  arisen  from  the  circum- 
stances, that  manufactures,  on  which  the  convicts  have  been  necessarily 
employed,  have  been  unprosperous — that  these  Penitentiary  institu- 
tions, being  of  recent  origin,  could  not  be  conducted  with  that  provi- 
dence and  judgment,  which  would  flow  from  experience,  and  that  the 
expectations  on  this  subject,  were  in  themselves,  highly  visionary  in  any 
state  of  society,  when  public  institutions  must  be  left  to  the  manage- 
ment of  agents,  who  possess,  in  their  prosperity,  no  individual  intep 
est. 

As  to  the  number  of  crimes,  they  have  not  increased  in  this  state,  a: 
in  places  where  severe  punishments  have  been  retained.  The  last  foui 
years,  there  has  been  a  gradual  decrease :  and  if,  on  our  seabord,  the 


59 


contrary  has  been  experienced,  it  has,  in  a  great  degree,  happened 
from  the  circumstance,  that  the  disordered  soldiers  and  sailors,  of  both 
Europe  and  America,  have  been  there  flung  to  famish  or  steal. 

My  opinion  on  the  3d  and  4th  questions,  must  be  obvious ;  and  on  the 
5th,  I  would  merely  suggest,  that,  for  repeated  ofTences  by  the  same  in- 
dividual, imprisonment  for  life ;  or,  if  that  be  too  expensive,  capiial 
punishment  may  be  expedient.  So  in  all  cases  of  conviction,  after  a 
pardon  :  for  in  these  instances,  hope  of  reformation  has  vanished ;  and 
the  violated  laws  should  have  their  victim,  unless  he  can  be  withheld 
eflOectually  from  future  crimes,  without  too  much  expense  to  the  pub- 
lic. 

As  to  transportation,  we  have  no  convenient  Botany  Bay ;  and  if  we 
had,  the  Penitentiary  System  may  be  made  equally  economical. 

In  fine,  give  me  leave  to  add,  that  in  the  consideration  of  this  Sys- 
tem, it  should  never  be  forgotten,  that  the  present  expenses  for  the  sup- 
port of  convicts  are  a  less,  and  more  equal  tax  on  the  public,  than  their 
depredations  when  at  large  :  and  that  security  in  person  and  property, 
which  are  pecuniary  objects  of  civil  society,  is  much  greater,  when  a 
horde  of  criminals,  of  every  grade,  are  in  safe  confinement,  than  they 
are  when  prowling  abroad.  It  is  true,  they  might  be  executed ;  but  this 
is  abhorrent  to  the  humanity  and  mildness  of  our  institutions,  and  is  not 
to  be  done,  unless  the  expenses  of  the  Penitentiary  System,  and  the 
increase  of  crimes,  under  it,  are  such  as  to  render  the  death  of  ofien- 
ders  indispensable  to  the  safety  of  the  public. 
Excuse  my  haste, 
Dear  Sir, 

And  believe  me, 

Most  respectfully,  yours, 

L.  WOODBURY. 

Hon.C.  D.  CoLDEN. 

From  SAMUEL  SPARHAWK,  Esq.  Secretary  of  the  state  of  New- 
Hampshire. 

Concord,  (N.  H.)  Aug.  9,  1820. 

MY  DEAR  SIR, 

Before  receiving  your  favor  of  21st  ult.  I  had  frequently  thought 
of  writing  you,  if  it  were  but  to  acknowledge  those  repeated  tokens  of 
your  remembrance — the  pamphlets  and  papers  which  I  have  received, 


60 


and  am  weekly  receiving  from  you.  But  this,  like  many  others  0/  my 
thoughts  and  purposes,  would  probably  have  proved  abortive,  had  you 
not  broken  the  silence. 

I  have  attended  to  your  enquiries,  and  will  now  attempt  briefly  to 
answer  them. 

The  first  is,  whether  the  State  Prison  in  this  state  has  answered  the 
expectations  of  the  public,  as  a  place  of  punishment  and  reform  ? 

What  these  expectations  were,  before  the  experiment  was  tried,  I 
don't  very  well  know,  but  suspect  they  were  raised  to  a  higher  pitch 
than  deep  thought  and  careful  enquiry  on  the  subject,  would  have  siu- 
thorised. 

Confinement  to  hard  labour,  is  a  punishment,  more  or  less,  severe, 
according  to  the  temper,  disposition,  and  habits  of  the  person  subjec- 
ted to  it. — To  some,  it  seems  to  be  very  grievous  ;  to  others,  compara- 
tively light.  I  am  inclined  to  the  opinion,  that  the  mass  of  our  crim- 
inals do  not  view  it  with  any  great  degree  of  terror. 

As  a  place  of  reform,  the  effects  of  our  State  Prison  have  also  been 
various.  Since  November  1812,  when  it  was  fitted  for  the  reception  of 
convicts,  150  have  been  committed  for  various  offences,  and  different 
terms  of  confinement  —chiefly  from  two  to  five  years.  A  number  of 
them  have  before  been  tenants  of  other  State  Prisons,  and  four  after 
having  been  discharged  from  ours,  have  returned  on  a  second  convic- 
tion. 

For  a  time,  the  number  of  prisoners  continued  pretty  uniformly  to 
increase,  till  it  amounted  to  74,  the  largest  number  ever  within  our  walls 
at  one  time.  Lately,  though  fluctuating,  it  has  been  rather  decreasing^ 
which  would  seem  to  be  a  favorable  symptom — the  present  number  is 
only  65. 

The  general  conduct  of  the  prisoners,  has  been  peaceable  and  sub- 
missive, though  with  some  exceptions.  Indications  of  reform  have  ap- 
peared in  many,  which,  perhaps,  have  proved  rather  superficial,  after 
their  restoration  to  liberty.  There  are  instances,  however,  within  my 
knowledge,  of  convicts  becoming  reputable  and  industrious  citizens, 
after  having  served  out  their  apprenticeships.  On  the  other  hand,  it 
must  be  acknowledged,  that  some  shew  no  signs  of  reformation  what- 
ever. 

On  the  whole,  it  is  my  opinion,  that  the  advantages  resulting  from 
our  Penitentiary,  considered  as  a  place  of  punishment  and  reform,  are 


61 


is  great  as  could  reasonably  have  been  expected,  though  I  do  not 
think  they  have  fully  answered  the  expectations  of  the  public. 

If  not,  you  enquire  2dly,  Whether  the  failure  has  been  owing  to  in- 
trinsic defects  in  the  Institution ;  or,  to  defects  in  the  construction  of 
the  edifice,  and  our  municipal  regulations  ? 

That  the  expectations  of  the  public  have  not  been  more  fully  answer- 
ed, may  be  owing  to  defects,  partly  in  the  System  itself,  and  partly  in 
oar  municipal  regulations.  Improvements  in  both,  have  occasionally 
been  adopted.  Two  years  since,  the  old  Board  of  Directors,  was  abol- 
ished, and  the  affairs  of  the  prison  were  placed  under  the  immediate 
direction  of  the  Governor  and  Council.  A  new  warden  or  superinten- 
dant  was  appointed,  and  the  rules  and  regulations  for  the  government 
of  the  interior  of  the  prison,  underwent  some  revision  ;  all  which  chan- 
ges, have  proved  salutary.  Further  experience,  will  probably  suggest 
□ther  improvements ;  but  I  am  not  aware,  at  present,  of  any  material 
defects  in  the  System,  on  the  existing  regulations.  Neitheram  I  aware 
3f  any  important  defect  in  the  construction  of  the  edifice ;  nor  do  I 
recollect  ever  having  it  suggested  that  alterations  essentially  advanta- 
geous, might  be  made  in  this  respect — some  speculations  of  Jeremy 
Bentham,  or  the  like,  perhaps,  excepted. 

Your  third  enquiry,  viz.  "  Has  the  state  of  New-Hjmipshire  gained, 
)r  has  she  lost  by  the  establishment  of  her  Penitentiary,  in  a  pecuniary 
Doint  of  view  ?"  is  easily  answered.  In  a  pecuniary  point  of  view,  she 
las  lost.  The  expenses  of  the  Institution  have  far  exceeded  the  gains 
lerived  from  it.  Besides  the  first  cost  of  the  buildings  and  appurte- 
tances,  (say  ^37,000)  there  has  since  been  drawn  from  the  treasury,  to 
lefray  the  expense  of  additional  buildings,  for  the  maintenance  of  the 
:onvicts,  pay  of  the  officers  and  watchmen,  and  other  incidental  and 
:asual  expenses,  about  ^35,000, — of  which  sum  between  four  and  five 
housand  dollars  was  expended  in  additional  buildings,  including  a 
?ork-shop  of  brick,  in  lieu  of  a  wooden  building,  which  was  burnt. 
Vhereas,  the  profits  arising  from  the  labour  of  the  convicts,  &c.  amount 
J  but  little  more  than  ^16,<lOO.  It  is  worthy  of  remark,  however,  that 
ince  the  improvements,  before  mentioned,  were  adopted,  there  has 
een  a  considerable  reduction  of  expenditure.  The  year  ending  May 
il,  1819,  the  actual  expenses  exceeded  the  profits,  by  about  six  hun- 
dred dollars  only,  and  the  last  year,  by  about  four  hundred. 

But  there  is  another  consideration  deserving  of  attention,  in  estima- 


ting  the  loss  or  gain  to  the  state.  The  present  System,  enables  us  to 
compare  the  one  with  the  other,  aud  accurately  strike  the  balance — 
which  indeed  proves  to  be  a  heary  loss.  But  what  would  the  loss  have 
been  under  the  former  System  ?  Would  it,  upon  the  whole,  have  been 
less  to  the  community  ?  I  think  not,  though  I  have  not  the  means  of 
forming  a  correct  opinion. 

I  have  not  seen  the  publication  by  Mr.  Rosco,  which  you  mention, 
but  am  glad  to  hear  of  so  able  a  writer  upon  so  important  a  subject. 
In  Great  Britain,  doubtless  a  radical  change  is  necessary ;  but  I  was 
not  aware  that  the  construction  and  discipline  of  our  prisons,  in  this 
country,  were  so  alarmingly  defective,  as  to  require  a  radical  change  ; 
neither  can  I  readily  conceive  it  will  become  necessary,  universally  to 
resort  to  solitary  confinement,  as  the  only  efTectual  method  of  punish- 
ment and  reform.  But  I  will  refrain  from  any  further  expression  of 
my  sentiments,  until  I  have  a  view  of  the  vohole  ground,  in  the  Report, 
a  copy  of  which  you  kindly  promise  me. 
Sincerely,  and  with  great  regard. 
Your  friend, 

S.  SPARHAWK. 

C.  G.  Haines  Esq. 

From  the  same. 

Concord, (N.  H.)  Aug.  ll,  1820. 

DEAR  SIR, 

After  having  sent  my  letter  of  the  7th  to  the  post  office,  I  noticed 
in  the  Columbian  of  the  4th  insf.  an  article  taken  from  the  Patriot,  of 
July  11,  headed,  "  New-Hampshire  State  Prison  ;"  wherein,  after  stat- 
ing the  gain  of  the  last  year  to  be  $^57, 2S,  another  statement  is  given, 
shof^'mga  further  gain  o{  ^^5^,  55,  which  is  incorrect.  The  former 
sum  includes  the  whole  gain  to  the  state  exclusive  of  the  warden's  sala- 
ry, which  being  added  to  the  expenses,  will  turn  the  balance  the  other 
way — making  a  loss  of  about  four  hundred  dollars,  as  stated  in  my 
letter.  The  sum  of  .f  ^•S^  55,  said  to  he  further  gained,  was  merely 
the  result  of  another  process,  which  ought  to  have  shown,  not  a  further 
gain,  but  the  same  balance,  i.  e.  the  result  of  each  process  should  have 
been  the  same.    They  are  nearly  so,  but  not  exactly. 

The  same  number  of  the  Patriot,  contains  a  summary  statement  of 
the  pecuniary  affairs  of  the  prison,  for  the  last  four  years  j  showing  the 


63 


lalance  against  the  Institution,  or  loss  to  the  state,  at  the  end  of  each 
■ear.  This  statement  will  also  appear  at  variance  with  that  I  lately 
ent  you.  The  former,  represents  the  prison  as  only  $12,388  in  ar- 
ears,  on  the  first  of  June  last ;  whereas  in  my  letter,  the  loss  was  esti- 
aated  in  round  numbers,  at  .$19,000.  The  difference  arises  from  the 
ircumstance  of  the  warden's  and  director's  salaries  being  included  in 
he  latter  sum,  and  not  in  the  former. 

The  statement  in  the  Patriot,  also  exhibits  a  balance  against  the  In- 
ititution,  on  the  1st  of  June,  1819,  greater,  by  upwards  of  f 3000,  than 
hat  of  the  y)receding  year,  which  would  lead  to  the  inference,  that  the 
expenses  or  the  year,  ending  June  19,  had  exceeded  its  profits  by  that 
sum,  which  is  not  the  fact.  When  the  new  warden  entered  on  the  du- 
ies  of  his  office,  the  property  appertaining  to  the  prison,  being  apprais- 
»d,  amounted  to  less,  by  about  <^2000,  than  it  had  been  estimated  in 
Jie  last  preceding  report  of  the  former  warden.  Thus  a  reduction  of 
;he  value  of  the  property,  which  really  existed,  and  should  have  appear- 
sd  in  the  estimate  of  1 81 8,  was  thrown  upon  the  succeeding  year.  This, 
iiowever,  is  of  no  importance  in  a  general  view  of  the  subject ;  but  I 
thought  it  mieht  be  well  to  offer  this  explanation,  otherwise,  you  might 
be  pu/.zled  with  the  discupancy  between  this  statement,  should  you  have 
seen  it,  and  my  account  of  the  loss  incurred  the  year  ending  May  31, 
1819. 

Being  rather  in  haste,  and  frequently  interrupted,  I  fear  I  have  not 
vritten  very  intelligibly  or  legibly  ;  but  if  you  can  discover  any  mean- 
ing, you  will  excuse  the  rest. 

Yours,  with  much  esteem, 

S.  SPARHAWK. 

C.  G.  Haines  Esq. 

-«tllli<^IIIIK=- 

VERMONT. 

PVoro  the  Honorable  DANIEL  CHIPMAN,  Counsellor  at  Law, 
late  Member  of  Congress. 

MiDDLEBURY,  Jan.  29,  l82l. 

SIR, 

The  letter  from  the  Committee  of  whom  you  are  Chairman,  un- 
der  date  September,  ]  820,  requesting  information  relative  to  the  Peni- 
(entiary  System,  was  duly  received.    It  has  hitherto  remained  unan- 


64 


swcred,  by  reason  of  constant  and  necessary  attention  to  my  profes- 
sional and  other  business.  Possibly,  however,  I  have  not  improved 
the  first  leisure  moment,  from  an  impression,  which  1  yet  sensibly  feelj 
that  I  can  give  the  Committee  no  aid  in  their  investigations.  But 
such  is  the  importance  of  the  subject,  and  I  so  highly  approve  the 
course  which  the  Committee  have  taken  to  enable  them  to  arrive  at  a 
clear  and  satisfactory  result,  that  I  could  not  remain  silent.  It  gave 
me  peculiar  uneasiness  when  I  reflected  that  my  silence  might  be  con- 
strued into  an  indifference  and  want  of  interest  in  the  subject. 

I  cannot,  however,  attempt  to  give  an  answer  to  either  of  the  ques- 
tions proposed,  but  merely  give  you  the  general  view  I  have  taken  of 
the  subject. 

The  Penitentiary  System  was  introduced  in  the  United  States  when 
there  was  a  rage  for  improvement.  It  was  supposed  by  many,  that 
the  world,  or  rather  some  individuals,  had  been  suddenly  enlightened; 
that  the  dictates  of  experience  were  only  so  many  obstacles  to  the  per- 
fectibility of  human  nature,  of  which  they  talked  so  much,  and  to  whicli 
they  really  believed  they  had  arrived ;  and  that  they  could,  by  a 
mighty  effort,  bring  the  darkened  and  lagging  world  up  to  their  own 
elevation.  This  day  of  enthusiasm  has  passed  away,  and  we  find  our- 
selves in  the  situation  in  which  imperfect  man  has  ever  been  :  know- 
ing but  very  little  which  it  is  useful  to  know,  but  what  was  known  be- 
fore ;  and  indeed  it  requires  labour  to  keep  the  stock  good,  if  I  may  so 
Say,  and  transmit  as  much  to  posterity  as  we  might  learn  from  those 
who  have  gone  before  us.  True  it  is,  that  all  our  institutions  are  im- 
perfect, and  would  therefore  seem  capable  of  improvement.  One 
difficulty  is,  that  mere  considerations  of  duty  do  not  excite  to  action ; 
some  passion  must  be  aroused,  an  enthusiasm  must  be  imbibed,  in 
order  to  excite  to  action,  and  introduce  any  considerable  improve- 
ments. When  thus  excited,  we  are  apt  to  let  go  our  hold  of  experi- 
ence, and  turn  out  visionary  projectors.  Even  the  exalted  talents  of 
Lord  Mansfield  did  not  wholly  protect  him  against  this  weakness  of 
human  nature.  He  entered  upon  the  business  of  improving  the  system 
of  the  Common  Law  with  no  more  ardour  than  was  necessary  to  effect 
the  object,  and  yet  suflTicient  to  lead  him,  in  some  few  cases,  to  mar 
the  system  he  was  attempting  to  improve,  and  which  he  did  improve 
beyond  any  other  judge  on  the  English  bench. 

But  the  projectors  or  promoters  of  the  Penitentiary  System,  were 


63 


peculiarly  exposed  to  an  enthusiasm  which  led  them  to  expect  bene* 
ficial  effects,  which  could  never  be  realized.  Every  feeling  of  hu- 
manity was  enlisted — it  was  so  pleasant  and  so  satisfying,  to  think  not 
only  of  saving  the  life  of  the  offender,  but  of  reforming  hira,  and 
restoring  hina  to  society  a  useful  member.  It  was  also  calculated  that 
the  punishment  would  strike  a  dread  upon  the  vicious,  equal  to  an 
ignominious  death  upon  the  gallows.  I  well  recollect  that  I  entertain- 
ed such  notions,  for  such  I  now  view  them. 

The  State  Prison  in  Vermont  was  erected  and  organized  in  1808, 
a.nd  the  I'enitentiary  System  went  into  operation  in  1809.  Confine- 
ment in  the  State  Prison  is  now  the  punishment  for  all  high  crimes, 
except  treason  and  murder.  False  witness,  by  which  life  is  taken ; 
and  arson  by  which  any  person  shall  suffer  death,  or  be  injured  in  his 
body  or  members ;  and  for  inferior  crimes,  down  to  petit  larceny,  in- 
clusive. The  Governor  and  Council  have  the  power  of  pardoning. 
This  body  consists  of  twelve  Counsellors,  chosen  by  the  people  annu- 
iUy,  and  the  Lieut.  Governor,  who  sits  as  Counsellor  when  the  Go- 
rernor  is  present.  The  Governor  presides  as  chairman  :  the  Govern- 
ttr  end  Council  is  a  branch  of  the  legislature,  in  place  of  your  Senate, 
!)ut  with  more  limited  powers  in  legislation.  The  power  of  pardon- 
,iig  has  been  exercised,  as  might  have  been  expected  from  such  a  body, 
very  liberally  :  a  number  have  been  pardoned  every  year.  When  the 
system  first  went  into  operation,  it  was  clearly  visible  that  the  punish- 
nent  struck  offenders  with  a  high  degree  of  dread  ;  but  it  is  now  uni- 
versally observed  that  the  dread  of  punishment  is  almost  wholly  worn 
)ff.  The  prisoners  live  comfortably  while  in  prison,  and  it  is  perfectly 
ivident  that  most  of  them  think  nothing  of  the  disgrace  of  confine- 
nent.  As  to  reforming  the  offender,  it  is  out  of  the  question,  in  the 
ainds  of  the  most  observing  I  only  wonder  how  it  ever  could  have 
teen  thought  there  was  any  considerable  chance  for  reformation.  The 
irisoners  are  only  exposed  to  corruption.  A  young  man  who  has  been 
letected  and  punished  for  the  first  crime  he  has  committed,  and  who 
las  no  stated  habits  of  vice,  is  confined  with  old  and  hardened  offend- 
I  rs,  and  those  will  have  an  influence  upon  the  young  mind — he  will,  in 
measure,  look  up  to  them.  But  if  the  prisoners  are  kept  in  such  a 
lanner  that  they  arc  not  exposed  to  corruption,  what  chance  for  re- 
ormation  ?  We  find  no  reformation,  in  fact,  and  I  think  we  have  no 
light  to  expect  it.    JMan  is  emphatically  a  creature  of  habit: — he  is 

I 


66 


governed  by  habit,  if  we  may  so  say.  The  nioial  faculty  requires 
exercise  to  keep  it  in  vigor,  that  it  may  perform  its  office,  as  much  as 
the  body.  Confine  a  man  ten  years  in  the  State  Prison,  removed  of 
course  from  all  temptations  to  vice  ;  he  may  be  said  to  lose  the  habit 
of  resisting  them  and  when  let  into  the  world  again  surrounded  by 
temptations,  he  gives  way  to  the  first  which  is  presented. 

I  have  made  use  of  too  strong  language  for  a  sober  discussion ;  but 
I  must  say  that  confinement  to  hard  labour,  for  the  reasons  above  men- 
tioned, has  a  natural  tendency  to  weaken  the  moral  faculty,  by  de- 
priving it  of  exercise,  and  the  culprit  leaves  the  prison  in  a  state  more 
liable  to  give  way  to  temptations  than  when  he  was  committed.  Thus 
U  has  happened  with  the  Penitentiary  System,  as  it  usually  happens 
upon  the  introduction  of  any  new  system — the  great  good  to  be  pro- 
duced, so  certain  in  theory,  is  not  obtained  in  practice.  But  unfore- 
seen evils  are  produced.  Such  has  been  the  disappointment  with 
respect  to  the  Penitentiary  System,  in  this  State,  that  almost  every  re- 
flecting mind  is  brought  to  a  stand,  and  has  endeavored  to  make  a  com- 
parison between  the  former  system  of  capital  and  other  punishments 
and  tlie  present  system.  In  making  this  comparison,  we  meet  witii 
difficulties  in  the  outset ;  such  was  the  state  of  society  when  the  pre- 
sent system  was  introduced,  and  such  the  paucity  of  crimes,  that  nei- 
ther capital  or  other  punishments  had  any  visible  effect.  If  we  take 
a  view  of  the  effects  of  capital  pmiishments  in  Europe,  and  compare 
them  with  the  effects  of  the  Penitentiary  System  here,  we  advance 
scarce  a  step  towards  a  solution  of  the  great  question — "  is  it  politic 
and  necessary  to  abandon  the  Penitentiary  System,  or  is  it  better  to 
attempt  its  improvement  ?"  Such  is  the  difference  between  the  state 
of  society  in  Europe,  with  their  crowded  and  half  starved  population, 
and  the  state  of  society  with  us,  that  any  one  system  of  punishments 
must  produce  very  different  effects  in  the  different  countries,  and  proba- 
bly no  possible  system  would  be  the  most  beneficial  one  in  every  coun- 
try. An  adaptation  of  a  law  to  the  state  of  society,  in  order  that  it 
may  be  useful,  is  not  more  obviously  necessary  in  any  branch  of  mu- 
nicipal regulations,  than  in  the  criminal  code.  If  the  law  inflict  pun- 
ishment unnecessarily  severe,  it  will  be  executed  with  no  degree  of 
certainty,  and  the  dread  of  punishment  will  be  lost  in  the  chance  of 
escape.  The  community  must  be  alarmed  by  the  commission  of  crime : 
an  interest  in  their  own  security  alone  will  overcome  their  feelings  of 


67 


humanity,  (false  humanity  in  most  cases,)  and  reconcile  them  to  san- 
guinary punishments.  This  consideration  alone  should  induce  our 
legislature  to  continue  the  Penitentiary  System.  But  I  really  cannot 
conceive  how  you  can  live  under  such  a  system,  in  so  populous  a  city 
as  that  of  New- York. 

We  have  no  populous  towns,  nor  shall  we  ever  have.  I  believe, 
therefore,  that  the  Penitentiary  System  may  be  continued  in  this  state, 
for  all  future  time,  with  some  essential  improvements,  which  may  take 
place,  nay,  they  will  take  place,  if,  as  I  believe,  crimes  will  be  multi- 
plied, and  increase  indefinitely,  under  our  present  system.  The  alte- 
rations I  should  propose  to  make  would  be  something  like  the  follow- 
ing : — To  make  some  of  the  higher  crimes  capital ;  say  forgery  and 
horse-stealing:  inflict  corporal  punishment  for  some  of  the  inferior 
crimes,  such  as  petit  larceny,  as  formerly :  and,  by  the  constitution, 
take  away  the  power  of  pardoning  those  committed  to  the  State  Prison. 
Under  such  a  system,  we  could  provide  buildings  sufficient  to  contain 
all  who  would  be  committed,  and  should  not  be  compelled  to  let  out  a 
part  to  make  room  for  others.  And  yet  I  have  no  doubt,  that  if  the 
power  of  pardoning  had  have  been  taken  away  in  the  outset,  the  State 
Prison  at  this  day  would  have  had  a  less  number  of  tenants  than  it  has 
at  present,  which  number,  by  the  way,  is  now  110  only.  The  com- 
mittee will  readily  perceive  that  if  I  am  correct  in  the  view  I  have 
taken  of  this  subject,  I  am  not  in  a  situation  to  give  them  any  aid  in 
the  arduous  task  assigned  them,  of  devising  the  best  system  for  the 
punishment  of  crimes  in  the  state  of  New- York. 

If  incorrect  in  the  view  I  have  tciken  of  the  subject,  what  I  have  said 
will  be  wholly  useless.    However  this  may  be,  I  hope  the  Committee 
will  do  me  the  justice  to  believe,  that  I  feel  a  deep  inlerest  in  the  re- 
sult of  their  labours,  and  shall  be  highly  gratified  with  their  Report. 
Very  respectfully, 

Your  obedient  servant. 

DANIEL  CHIPMAN. 

Hon.  Cadwallader  D.  Colden, 

P.  S.  Permit  me  to  introduce  another  subject,  not  connected  with 
the  foregoing,  but  related  to  it.  We  have  no  law  in  this  state,  and  I 
take  it  you  have  no  law  in  the  state  of  New- York,  making  it  penal  to 
counterfeit,  or  pass  counterfeit  bills  on  the  Canada  banks ;  and  they 
have  no  law  in  the  province  of  Canada,  making  it  penal  to  counterfeit 


68 


our  bills.  The  consequence  is,  that  they  openly,  antl  with  perfect 
safety,  set  up  their  presses  in  the  province  of  Canada,  on  the  borders 
of  our  states,  and  counterfeit  our  bills  and  keep  them  for  sale.  Ib 
this  state  of  security,  they  have  made  wonderful  improvement  in  the 
execution  of  the  bills,  and  do,  and  forever  will,  find  purchasers  among 
our  citizens  We  may  fill  our  State  Prison,  yet  the  crime  will  not  be 
prevented,  or  even  checked.  If  this  can  be  prevented,  does  it  not 
savour  of  criminality  to  neglect  it.  They  establish  themselves  oa 
this  side  the  line,  and  with  equal  safety,  counterfeit  Canada  bills. 
Should  We  not,  then,  in  the  state  of  New- York  and  in  Vermont,  make 
it  penal  to  counterfeit  the  Canada  bills,  or  to  pass  such  counterfeit 
bills ;  and  would  not  the  government  of  Canada,  on  a  representatioa 
made  to  it,  of  the  real  state  of  the  case,  pass  a  law  making  it  penal  to 
counterfeit  bills  on  the  banks  of  the  United  States  ?  Should  they  do 
so.  they  would,  in  that  government,  make  it  a  capitcd  offence,  of  course. 

This  done,  we  should,  compared  with  what  we  now  experience, 
have  very  little  trouble  with  counterfeit  bills.  We  know  by  experi- 
ence, that  before  they  found  they  could  carry  on  the  business  with 
safety  in  the  province  of  Canada,  they  used  to  attempt  setting  up  their 
works  in  the  states,  and  that  they  seldom  got  them  into  operation  be- 
fore they  were  detected  and  broken  up.  If  these  counterfeiting  esta- 
blishments can  be  broken  up,  we  ought  to  eSect  it.  It  is  a  duty  we 
owe  to  the  honest  and  industrious  part  of  community,  to  protect  them 
against  the  counterfeit  bills ;  and  to  the  vicious  part  of  community,  to 
remove  the  temptation  to  purchase.  D.  C. 

-«iMI|^|lllie- 

VIRGINIA. 
Letter  from  SAMUEL  P.  PARSONS. 

Virginia  Penitentiary,  11th  Mo.  14,  1820. 
To  the  Committee  appointed  to  Report  on  the  Pcnitcntianj,  <^  c.  in  the 
State  of  New-York. 

GENTLEMEN, 

Your  written  communication  did  not  get  to  hand  until  the  6th 
instant,  otherwise  you  should  have  heard  from  nie  ere  this. 

Before  I  proceed  to  answer  your  queries  on  a  subject  in  which  I  feel 
a  deep  interest,  I  beg  leave  to  make  a  few  general  remarks,  in  rela- 
tion to  the  Heniteutiary  System — a  mode  of  punislmwnt  very  cons 


6^ 


iiant  with  our  republican  institutions,  and  on«  that  has  not  receired 
that  attention  which  its  importance  requires.  That  any  institution, 
the  object  o^  which  is  to  better  the  condition  of  our  fellow  men, 
should  meet  with  opposition,  before  it  has  been  fairly  tried,  and  every 
exertion  used  to  promote  its  usefulness,  is  much  to  be  regretted. 

I  consider  few  subjects  less  understood,  and  of  more  importance, 
ihan  this.  When  we  speak  of  Penitentiaries,  we  mean  places  to 
punish  the  guUtj  and  render  them  better  ;  at  the  same  time  to  deter 
jthers  from  the  perpetration  of  crimes,  the  success  of  which  depends 
on  two  great  points  :  First,  laws  that  are  equal  in  their  operation,  and 
certain  in  their  execution.  Secondly,  a  suitable  bead  to  administer 
hese  laws  properly,  and  to  direct  all  its  movements.  This,  perhaps, 
is  the  greatest  difficulty,  and  requires  the  most  profoiuid  and  judicious 
irisdom  in  naking  the  selection.  On  this  every  thing  depends,  and 
ivithout  it  every  thing  is  lost.  There  may  be  inspectors,  agents, 
;lerks  and  assistants,  which  will  avail  nothing  if  the  head  is  mate- 
iially  defective. 

To  oTffanize  such  an  institution  to  advantage,  a  man  should  be  got, 
inown  for  his  virtue,  mechanical  knowledge,  industry  and  intelligence ; 
niW,  but  decisive  character ;  benevolent  and  charitable.  He  should 
)e  responsible  for  the  whole  government.  There  should  be  a  board 
if  a  few  discreet  and  intelligent  men,  not  exceeding  seven,  to  superin- 
end  the  disposition  of  the  manufactures,  and  to  control  the  many 
:oncems  of  the  establishment.  The  superintendcint  to  have  power 
0  form  all  rules  and  regulations  for  the  government  of  the  interior, 
rabject  to  the  negative  of  this  board.  They  should  be  co-ordinate 
n  their  functions.  AM  other  officers  should  be  appointed  by  the 
.Tiperintendant,  likewise  subject  to  the  negative  of  this  board.  In 
act,  the  board  to  act  in  the  capacity  of  advisers  and  counsellors,  ex- 
:ept  in  relation  to  sales,  purchases,  &c.  for  the  use  of  the  prbon — 
lere  they  should  have  the  sole  power.  As  the  superintendant  must 
tnow  what  is  wanting,  and  when,  and  the  quality  of  the  article,  he 
ihould,  of  course,  be  the  purchaser  of  the  raw  materials  for  the  use 
Df  the  institution. 

From  my  youth  I  was  a  friend  to  the  system ;  believing  that  justice 
■equired  punishment  to  be  apfKjrtioned  agreeable  to  the  magnitude  of 
luilt ;  that  it  was  inliuman  to  involve  all  offenders  in  the  same  punish- 
nent ;  and,  as  my  information  was  very  limited  on  the  subject,  never 


TO 


having  seen  a  similar  institution,  other  than  this,  upon  my  appointment 
to  the  office  I  now  hold.  I  was  a  mere  novice  in  the  practical  man- 
agement of  such  an  institution  ;  but  I  had  much  at  stake,  and  began 
to  search  for  the  defects  and  their  causes,  and  have  great  satisfaction 
in  having  been  able  to  obtain  many  alterations,  and  make  essential  im- 
provements, in  the  government  and  police  of  this  prison.  Still  it  is 
far  short  of  that  perfection  it  is  susceptible  of  attaining.  I  am  flatter- 
ed with  a  prospect  of  the  legislature  doing  something  towards  impro- 
ving the  system  at  its  ensuing  session. 

For  some  valuable  information  on  the  Penitentiary  System,  I  would 
refer  you  to  several  essays  that  appeared  in  the  Enquirer  of  Richmond, 
during  the  last  summer ;  they  were  re-psblished  in  many  of  the 
northern  papers ;  should  they  not  be  obtained  in  your  city,  I  wiU  en- 
deavor to  procure  and  forward  them,  with  our  annual  report,  ending 
on  the  30th  of  9th  mo.  last,  as  soon  as  it  is  printed. 

Should  these  hasty  remarks  throw  any  light  on  the  subject  of  your 
enquiry,  I  shall  be  well  compensated  in  aiding  and  promoting  so  lauda- 
ble an  undertaking.  I  shall  be  pleased  with  a  copy  of  your  Report. 
Respectfully  your  Friend, 

SAMUEL  P.  PARSONS. 

Answer  1.  I  am  not  able  to  say  what  has  been  the  effect  of  the  Pen- 
hentiary  System  in  the  United  States ;  but  believe  that  in  Virginia, 
and  some  others,  it  has  had  some  good  effect.  It  certainly  is,  in  my 
view,  susceptible  of  such  improvement  as  to  be  one  of  the  greatest  in- 
stitutions the  world  has  yet  produced.  I  find  that,  between  the  years 
1800  and  1816,  there  were  fewer  capital  crimes  committed  in  this 
state  than  at  any  15  previous  years,  since  the  adoption  of  our  govern- 
ment; and  this  I  attribute  to  the  certainty  of  punishment,  because  of 
its  mildness. 

Ans.  2.  The  Penitentiary  System  has  measurably  failed  to  answer 
the  ends  of  its  institution,  and  the  causes  are  attributed  to  various  de- 
fects, viz :  The  pernicious  practice  of  frequent  pardoning — a  sickly 
sympathy  extended  to  those  professing  reformation,  under  a  cloak  of 
religion — a  deficiency  in  the  qualification  of  officers,  who  are  not 
clothed  with  sufficient  power  to  suppress  all  disorderly  conduct  in  the 
convicts — the  want  of  a  proper  head  to  direct  its  movements — too 
great  an  intercourse,  out  of  wanton  curiosity,  into  the  prison — too  ma- 
ny are  lodged  in  a  room— the  confinement  not  sufficiently  solitary. 


71 


Ans.  3.  I  think  it  woold  be  bad  and  inhuman  policy,  and  unne* 
■essary,  to  abandon  the  Penitentiary  System  ;  because  I  have  no 
loubt  but  it  may  be  improved,  to  national  advantage,  and  made  to 
inswer  the  ends  for  which  it  was  created.  There  is  no  mode  of  pun- 
shment  so  hkely  to  check  the  career  of  vice,  as  that  of  the  Peniten- 
tiary. 

Arts.  5.  I  believe  that  capital  punishments  have  not  yet  succeeded, 
n  any  country,  to  secure  the  community  against  the  commission  of 
;nmes.  1  have  seen  some  late  accounts  from  England,  where  (he 
;riminal  makes  a  laugh  at  going  to  the  gallows,  while  others  are  com- 
nitting  the  same  crime  for  which  he  is  then  to  be  punished.  It  would 
)e  very  difficult  to  inflict  capital  punishment,  in  this  country,  to  a 
Teater  extent  than  the  present  existing  laws  require,  neither  is  it  con- 
sistent with  a  Christian  nation. 

Ans.  6.  That  of  transporting  criminals,  from  a  country  like  this, 
[  consider  absurd,  inconsistent,  and  injurious  ;  because  we  have  no 
territory,  other  than  on  this  continent,  and  if  we  had,  they  must  be 
left  to  destroy  each  other,  or  an  army  created  to  keep  them  in  order, 
which  is,  I  think,  inconsistent  with  the  republican  institutions  of  this 
country.  As  to  reforming  convicts  by  dooming  them  to  the  chain,  I 
;onsider  the  worst  of  all.  It  degrades,  hardens,  and  genders  the  most 
inhuman  and  cruel  tyrant  in  the  world. 

NEW-JERSEY. 
From  WILLIAM  NEWBOLD,  Esquire. 

Springfield,  N.  J.  nth  mo.  1st,  1820. 

ESTEEMED  FRIENDS, 

Your  circular,  under  date  of  Sept.  1820,  arrived  when  I  was  on 
a  distant  journey,  and  since  my  return  have  been  pressingly  engaged. 
I  mention  these  circumstances  as  an  apology  for  not  giving  it  earlier 
attention. 

The  subject  introduced,  undoubtedly,  is  one  eminently  interesting 
to  society,  and  therefore  entitled  to  close  investigation,  before  a  final 
decision  is  had  upon  it — nor  am  I  dissatisfied  in  finding  that  the  can- 
vas is  set  on  foot,  believing  that  if  it  is  dispassionately  conducted,  it 
will  be  ultimately  productive  of  good. 

I  am  aware  that  there  is  much  diversity  of  opinion  respecting  the 


Penitentiary  System— but  I  should  most  willingly  hope,  that  it  is 
rather  on  the  point  of  political  expedience,  than  of  moral  soundness, 
that  any  doubts  exist ; — for,  though  the  first,  (as  a  mischievous  doc- 
trine,) might  produce  unhappy  effects  ;  yet  1  conceiire  the  latter  to 
be  much  more  alarming,  as  it  would  be  indicative  of  a  degeneracy 
of  morals,  and  must  necessarily  influence  a  decision  upon  the  main 
question.  For  our  criminal  laws,  though  they  were  made  literally 
perfect,  yet  if  they  are  not  congenial  with  the  temper  of  the  people, 
or  the  feeling  of  the  people  not  in  unison  with  the  laws,  they  will  be 
little  more  than  a  nullity. 

My  speaking  thus  in  allusion  to  Penitentiaries,  is  from  the  view  of 
them,  on  the  broad  basis  of  a  system  of  reform.  Their  legal  and  in- 
ternal "regulations,  I  consider  a  somewhat  distinct  matter,  and  of 
subordinate  nature.  Fur  if  it  is  correct  as  a  principle,  that  the  sys- 
tem of  reform  is  fundamentally  sound,  the  great  point  is  settled — and 
it  is  one  to  which  all  the  practical  operations  ought  constantly  to  con- 
verge :  and  that  it  is  sound,  1  think  no  moral  philosopher  can  ration- 
ally doubt. 

To  come,  however,  to  the  particular  subjects  of  enquiry,  I  answer 
to  the  first,  That,  having  no  data  to  proceed  upon,  1  cannot  say  any 
thing  that  would  be  conclusive  or  satisfactory.  ; 

2d.  The  Penitentiary  System  has  failed  to  answer  the  ends  of  its  in- 
stitution— and  this  failure  may  be  attributable,  both  to  a  defect  ia 
the  legal  provisions,  and  to  the  internal  police  of  the  establishments. 
For,  as  I  have  already  premised  that  reform  is  to  be  the  paramount 
consideration — so  in  accordance  with  this  doctrine,  the  authorative  acts 
of  man  toward  his  fellow  man,  must  be  with  a  view  to  his  moral  good — 
political  expedience  will  then,  (as  it  always  ought,)  be  subservient  to 
moral  right — and  the  only  question  will  be,  how  best  to  attain  the  de- 
sired object ; — which  must,  in  a  great  measure,  be  decided  by  existing 
circumstances.  While,  on  the  other  hand,  fruits  answerable  to  the  rea- 
sonable desires  of  the  philanthropist,  or  the  seeming  expectations  of 
the  community,  are  not  to  be  looked  for  from  the  System,  in  so  defec- 
tive a  form. 

3d.  It  is  not  politic  or  necessary,  to  abandon  the  Penitentiary  Sys- 
tem, unless  there  is  such  a  general  depravity  of  morah  in  oar  Republics, 
that  it  cannot  be  sustained — and  if  that  is  sorrowfully  the  fact,  it  is  9 
plain  index  to  their  downfall ;  but  if  the  case  is  otherwise,  attempt,  by 
all  reasonable  means,  its  improvement. 


73 


4lh.  If  the  Penitentiary  System  is  thus  abandoned,  I  think  we  need 
ot  much  concern  ourselves,  to  find  a  substitute  ;  but  rather  leave  the 
oncern,  in  its  untoward  state,  to  the  conflict  of  the  boisterous  ele- 
nents. 

5th.  A  radical  defect  in  our  present  Penal  Code,  is  that  capital  pun- 
ghmentis  authorised  in  any  case;  consequently  it  would  not  promote 
le  ends  of  justice,  nor  contribute  to  public  security,  to  extend  it,  un- 
;ss  as  before  stated,  we  have  not  virtue  enough  to  do  otherwise,  and  if 
re  have  not,  the  power,  (or  at  least  the  advantage,)  of  choice,  is 
;one.    The  ship  may  be  given  up. 

6th.  The  practicability  of  transporting  criminals,  would  depend  on 
ertain  circumstances ;  particularly  that  of  having  a  suitable  place  to 
onsign  them  to.  If  such  a  place  was  had,  it  appears  not  very  impro- 
)able  that  it  might,  in  cases  of  a  particular  description,  be  the  best  way 
f  attaining  the  end  in  view ; — and  if  so,  then  it  would  be  politic,  but 
lot  otherwise.  Nor  would  it  be  consistent  with  the  nature  of  those  in- 
titutions,  nor  reform  criminals,  to  doom  them  to  the  ignominious  and 
;alling  chain  ;  it  would  be  a  severity  tending  to  make  the  mind  more 
:allous,  and  consequently,  fit  it  for  increased  crime. 

But,  although  cure  is  good,  prevention  is  better ;  and  while  we  are 
audibly  concerned  in  endeavoring  to  reclaim  the  evil  members  of  socie- 
y,  let  us  look  to  the  source  from  whence  much  of  the  malady  springs, 
nd  endeavour  to  lessen  crime,  by  an  increased  attention  to  correct  ed- 
cation,  and  moral  instruction,  which,  being  promoted  by  good  laws, 
'ell  administered,  will  leave  fewer  criminal  subjects,  to  afterwards  re- 
laim. 

I  have,  with  franknt,.  and  freedom,  attempted  to  answer  the  queries 
roposed,  by  briefly  expressing  my  ideas  on  the  interesting  subject. 
!  our  liberality  will  excuse  the  imperfections  of  the  composition. 
With  unfeigned  desires  that  the  good  work  before  us  may  prosper, 
ad  its  benefits  be  difiiised  over  our  beloved  country, 
I  am,  with  sentiments  of  respect  and  esteem. 
Your  sincere  friend, 

WILLIAM  NEWBOLD. 

To  C.  D.COLDEN, 

P.  A.  Jay, 

J.  MiLNOR, 

T.  Eddy, 

C.  G.  Haines. 

K 


74 


CAPITAL  PUNISHMENT  IN  ENGLAND. 

Tlie  following  testimony,  is  embraced  in  the  Report  from  the  select 
Committee  on  the  criminal  laws  in  England,  to  the  House  of  Com- 
mons, on  the  8th  of  July,  1819.    We  trust  that  the  fdcts  here  laid 
before  the  American  public,,  will  carry  conviction  to  every  bosom.  : 
The  whole  Report,  from  which  this  extract  is  taken,  together  with  I 
the  details  of  evidence  and  the  appendix,  makes  about  300  folio  pa- 
ges.   If  the  great  and  luminous  document  from  which  we  gather  the 
facts  now  submitted,  could  be  extensively  read  in  the  United  Stales, 
the  good  old  doctrines  of  William  Penn,  Benjamin  Franklin,  Wil, 
liam  Bradford,  and  Benjamin  Rush,  might  again  be  fashionable  in  a 
christian  community. 
What  do  the  following  witnesses  prove  ?    They  substantiate  what  we 
assert  in  our  Report.    The  severity  of  punishments  will  defeat  the  i; 
execution  of  the  law.   Witnesses,  grand  juries,  petit  juries,  and  even  • 
executive  magistrates,  will  avoid  the  infliction  of  death,  where  they 
can  do  it,  and  thus  let  criminals  escape,  and  crimes  go  unpunished. 
"Your  Committee  have  sought  for  evidence  on  these  subjects  from 
those  classes  of  men  who  are  suflerers  from  Larcenies,  who  must  be 
prosecutors  where  these  Larcenies  are  brought  to  trial,  who  are  the  ' 
witnesses  by  whom  such  charges  must  be  substantiated,  and  who  ar»  - 
the  Jurors,  by  whose  verdicts  only  effect  can  be  given  to  the  laws.  On 
this  class  of  Persons,  where  the  crimes  are  most  frequent,  and  w  here  I 
long  and  extensive  experience  allows  little  room  for  error  and  none  for 
misrepresentation,  or  in  other  words,  on  the  Traders  of  the  cities  of 
London  and  Westminster,  Your  Committee  have  principally  relied  for 
information.    To  the  clerks  at  the  oflices  of  magistrates,  and  to  the  of- 
ficers of  criminal  courts,  who  receive  informations  and  prepare  innict- 
ments,  to  experienced  magistrates  themselves,  and  to  the  gaolers  and 
others,  who,  in  the  performance  of  their  duties,  have  constant  opportu- 
nities of  observing  the  feelings  of  offenders,  the  Committee  have 
also  directed  their  inquiries;  their  testimony  has  been  perfectly  vni-  I  ' 
form. 

"Mr.  Shelton  who  has  been  near  forty  years  Clerk  of  Arraigns  at  the  ■ 
Old  Bailey,  states,  that  Juries  are  anxious  to  reduce  the  value  of  pro 
perty  below  its  real  amount,  in  those  Larcenies  where  the  capital  pun- 
ishment depends  on  value ;  that  they  are  desirous  of  omitting  thost 


75 


circumstaoces  on  which  the  capital  punishment  depends  in  construe^ 
live  burglaries  j  and  that  a  reluctance  to  convict  is  perceptible  in  for- 

"  Sir  Archibald  MacdoncUd  bears  testimony  to  the  reluctance  of  pro- 
secutors, witnesses  and  juries,  in  forgeries,  in  shop-lifting,  and  offen- 
ces of  a  like  nature.  He  believes  that  the  chances  of  escape  are  great- 
ly increased  by  the  severity  of  the  punishments.  "  Against  treason, 
murder,  arson,  rape,  and  crimes  against  the  dwelling  house  or  person, 
and  some  others,"  he  thinks  "  the  punishment  of  Death  should  be  di- 
rected." 

"  T.  IV.  Carr,  Esq.  Solicitor  of  Excise,  a  very  intelligent  public  offi- 
cer, gave  an  important  testimony,  directly  applicable  indeed  only  to 
offences  against  the  Revenue,  but  throwing  great  light  on  the  general 
tendency  of  severity  in  Penal  Laws  to  defeat  its  own  purpose.  From 
his  extensive  experience  it  appears,  that  severe  punishment  has  ren- 
dered the  law  on  that  subject  inefficacious.  Prosecutions  and  convic- 
tions were  easy  when  breaches  of  the  law  were  subject  to  moderate 
pecuniary  penalties;  even  a  great  pecuniary  penalty  has  been  found  so 
favourable  to  impunity,  that  fraudulent  traders  prefer  it  to  a  moderate 
penalty.  The  act  of  counterfeiting  a  stamp  in  certain  cases,  within 
the  Laws  of  Excise,  weis,  before  the  year  one  thousand  eight  hundred 
and  six,  subject  only  to  a  penalty  of  five  hundred  pounds ;  but  in  that 
year  it  was  made  a  transportable  offence,  of  which  the  consequence  was, 
that  the  con%'ictions.  which  from  one  thousand  seven  hundred  and  nine- 
ty-four, to  one  thousand  eight  hundred  and  six,  had  been  nineteen  out  of 
twenty-one  prosecutions,  were  reduced  in  the  succeeding  years,  fiom 
one  thousand  eight  hundred  and  six,  to  one  thousand  eight  hundred 
and  eighteen,  to  three  out  of  nine  prosecutions. 

"  Mr.  Newman,  Solicitor  for  the  city  of  London,  speaking  from  thirty 
years  experience,  of  the  course  of  Criminal  Prosecutions  in  that  city, 
I  informed  the  Committee,  that  he  ha'd  frequently  observed  a  reluctance 
I  to  prosecute  and  convict,  in  capital  offences  not  directed  against  the 
[lives,  persons,  or  dwellings  of  men. 

:    "  The  Rev.  Mr.  Cotton,  Ordinary  of  Newgate,  has  described  in  strong 
^  terms  the  repugnance  of  the  Public  to  capital  execution  in  offences  un- 
attended with  violence,  and  the  acquiescence  even  of  the  most  depra- 
ved classes  in  their  infliction  in  atrocious  crimes. 
"Mr.  ColquJioun,  for  twenty-seven  years  a  police  magistrate  in  this 


76 


Capital,  and  well  known  by  his  publications  on  these  subjects,  declares 
his  firm  conviction  that  capital  punishment  in  the  minor  offences  ope- 
rate powerfully  in  preventing  convictions;  and  that  there  is  a  great  re- 
luctance to  prosecute  in  forgery,  shoplifting,  larceny  in  the  dwelling 
house,  burglary  without  actual  entry,  horse-stealing,  sheep  stealing, 
cattle  stealing,  framebreaking,  housebreaking  in  the  day  time,  robbery 
without  acts  of  violence,  and  other  minor  offences,  now  subject  to  the 
punishment  of  death.  According  to  the  testimony  of  this  intelligent 
observer,  the  public  mind  revolts  at  capital  punishment  in  cases  not 
atrocious. 

"  Mr.  Newman,  late  keeper  of  Newgate,  and  connected  with  the  ad- 
ministration of  justice  in  London  for  forty  years,  gave  testimony  to  the 
same  effect. 

"  Mr.  Bassil  Montagu  stated  a  fact  of  .the  most  striking  nature,  im- 
mediately applicable  only  to  one  offence,  but  showing  those  dispositions 
in  the  minds  of  the  public  which  must  produce  similar  effects  wherever 
the  general  feeling  is  at  variance  with  the  provisions  of  criminal  law. 
From  the  year  one  thousand  seven  hundred  and  thirty-two,  when  em- 
bezzlement of  property  by  a  bankrupt  was  made  a  capital  offence,  there 
have  been  probably  forty  thousand  bankruptcies ;  in  that  period  there 
have  been  more  than  ten  prosecutions,  and  three  executions  for  the  ca- 
pital offence,  and  yet  fraudulent  bankruptcies  have  become  so  common 
as  almost  to  be  supposed  to  have  lost  the  nature  of  crime. 

"  Mr.  Hobler,  clerk  to  the  Lord  Mayor  and  to  the  sitting  magistrates 
in  London  for  thirty  years,  stated  the  anxiety  of  prosecutors  to  lower 
the  value  of  goods  stolen ;  and  has  observed  many  cases  of  forgery,  in 
which,  after  the  clearest  evidence  before  the  magistrate, the  Grand  Ju- 
ry has  thrown  out  the  Bill  for  some  reason  or  other,  where  the  magis- 
trate had  no  doubt.  The  same  solicitude  to  reduce  the  value  of  parti- 
cles privately  stolen  in  shops  and  dwelling  houses,  has  been  remarked 
by  Mr.  Payne,  clerk  to  the  sitting  magistrate  at  Guildhall ;  by  Mr. 
Yardley,  clerk  at  the  office  in  Worship-street,  who  has  observed  a  dis- 
inclination to  prosecute  in  all  capital  cases,  except  murder;  and  who 
says,  that  in  larcenies  he  has  often  heard  prosecutors,  especially  fe- 
males, say,  "  I  hope  it  is  not  a  hanging  matter and  by  Mr.  Thom- 
son, clerk  at  the  office  in  Whitechapel,  who  represents  it  as  common 
for  prosecutors  in  larcenies  to  ask,  can  this  be  put  under  forty  shil- 
lings ?" 


77 


Mr.  Alderman  Wood,  a  Member  of  the  House,  an  active  magistrate, 
md  two  successive  years  Lord  Mayor  of  London,  has  strongly  stated 
ihe  unwillingness  of  shopkeepers  and  others  to  prosecute,  the  number 
)f  offenders  who,  during  his  mayoralty,  owed  their  escape  to  this  cause ; 
iBd  his  decided  conviction,  that  if  the  capital  punishment  was  taken 
iway,  the  reluctance  to  prosecute  would  be  greatly  abated. 

"  Mr.  IVilkinson,  a  merchant  in  London,  stated  a  case  of  property,  to 
he  value  of  one  thousand  pounds  stolen  from  him,  where  he  was  de- 
erred  from  prosecution  by  the  capital  punishment ;  and  expressed  his 
jelief  that  a  similar  disposition  prevailed  among  persons  of  the  like 
condition  and  occupation  with  himself. 

"  Mr.  Josiah  Conder,  bookseller,  Mr.  Joseph  Curtis,  currier,  Mr. 
Wendover  Fry,  type-founder,  and  Mr.  John  Gaun,  a  merchant  and  shoe 
manufacturer,  stated  instances  in  which  they  were  prevented  by  the 
capital  punishment  from  prosecuting  offenders,  whom  they  would  have 
brought  to  justice  if  the  punishment  had  in  their  opinion  been  more 
proportioned  to  the  crime.  They  also  declared,  that  there  is  a  gene- 
ral disinclination  to  prosecute  among  the  traders  of  the  city  of  London, 
or  to  convict  in  thefts  without  violence,  and  in  forgeries. 

"  <Si>  Richard  Phillips,  a  bookseller  in  London  and  once  sheriff,  as  well 
is  often  a  juror,  has  in  these  several  capacities  observed  the  same  facts. 
Mr.  Richard  Taylor,  a  common  council  man,  prosecuted  some  men 
for  breaking  into  his  printing-office  and  stealing  some  property  out  of 
it,  for  which  they  were  transported,  but  whom  he  would  not  have  pro- 
secuted if  he  had  not  previously  ascertained  that  the  connection  of  the 
printing-office  with  the  dwelling  house  was  not  such  as  to  make  the 
ict  a  capital  offence. 

I  "  Mr.  Richard  Martin,  a  Member  of  the  House,  informed  the  Com- 
mittee, that  the  punishment  of  death  prevented  prosecutions  in  Ireland 
for  horse,  cattle,  and  sheep  stealing,  for  privately  stealing  in  dwelling 
bouses  and  shops,  and  in  general  for  all  larcenies  without  violence. 
Though  the  extensive  estate,  of  which  he  is  proprietor,  be  almost  laid 
A  aste  by  sheep  stealing,  he  has  been  prevented  from  prosecuting  by  the 
punishment  of  death.  If  the  punishment  were  reduced  to  transporta- 
tion, he  would  certainly  prosecute  the  offenders  to  conviction.  He 
has  no  doubt  that  his  estate  would  be  better  protected  if  the  law  were 
more  lenient,  and  that  the  reduction  of  the  penalties  of  the  law  would 


promote  the  security  of  property  throughout  the  province  of  Con- 
naught. 

"  Mr.  James  Soaper,  of  Saint  Helen's  Place,  Mr.  Ebenezer  Johnson, 
of  Bishopsgate-street,  ironmonger,  Mr.  Baker,  of  the  Tower,  Mr.  Lew- 
is, a  retired  merchant,  and  Mr.  Garret,  an  insurance  broker,  bore  tes- 
timony to  the  general  repugnance  to  prosecution  which  arose  from  ca- 
pital punishment ;  some  of  them  mentioned  instances  in  which  they 
had  been  deterred  by  that  consideration  from  bringing  offenders  to  jus- 
tice. Mr.  Garret  said,  that  as  far  as  his  observation,  there  was  not  one 
in  twenty  who  did  not  shudiier  at  the  idea  of  inflicting  the  capital  pun- 
ishment in  cases  of  forgery.  Messrs.  Frederic  and  fViltiam  Thornhill, 
hardware  men,  mentioned  cases  of  theft  in  which  they  had  forborne  to 
prosecute  on  account  of  the  punishment  of  Death.  The  former  added, 
that  he  found  it  to  be  an  almost  universal  sentiment  among  his  neigh- 
bours and  acquaintance,  that  excessive  punishment  tends  very  greatly 
to  the  production  of  crime ;  that  he  knows  many  persons  who  have  been 
great  sufferers  by  thefts  in  shops  and  dwelling  houses,  and  who  declare 
that  if  the  punishment  of  such  offences  had  been  any  thing  less  than 
death,  they  would  have  regarded  it  as  hiL'hly  criminal  in  themselves  to 
have  forborne  prosecution,  which  they  had  felt  themselves  compelled 
to  abstain  from  in  every  instance  on  account  of  the  punishment,  and 
must  continue  to  act  on  the  same  principle  of  forbearance  till  there  was 
an  amendment  in  the  law  He  also  informed  the  Committee,  that  from 
his  knowledge  of  a  great  variety  of  cases,  he  was  convinced  the  more 
lenient  punishment  would  more  effectually  prevent  forgery. 

"  Mr.  Collins  and  Mr.  Crowther,  considerable  and  very  respectable 
traders  in  Westminster,  gave  evidence  which  the  Committee  consider 
as  of  peculiar  value.  Mr.  Collins  has  suffered  both  from  larcenies  and 
forgeries,  and  was  restrained  by  the  state  of  the  penal  law  from  bring- 
ing the  offenders  to  justice,  which  he  would  otherwise  have  taken  the 
greatest  pains  to  do.  He  thinks  that  the  laws  of  God  do  not  permit 
life  to  be  taken  away  for  mere  offences  against  property ;  and  that 
among  his  friends,  many  of  whom  are  traders  in  London  aud  West- 
minster, he  does  not  know  a  single  exception  from  concurrence  in 
such  sentiments.  Mr.  Crowther  stated,  that  no  porter  had  left  their 
establishment  for  twenty  years  for  any  other  cause  than  theft ;  that  li 
prosecution  had  taken  place  in  one  instance,  and  had  terminated  ia 
conviction  and  condemnation.    ''The  pain  and  anxiety,"  he  adds, 


79 


"  occasioned  by  that  event,  until  we  obtained  for  him  the  Royal  Mer- 
cy, none  can  describe  but  ourselves  ;  which  made  us  resolve  never  to 
prosecute  again  for  a  similar  offence."  The  general  opinion  of  the 
traders  in  London  and  Westminster  is  the  same  with  his  own.  He 
declared,  that  if  he  received  a  forged  bank  note,  he  should  be  prevent- 
ed from  prosecution  by  the  punishment  of  death,  and  that  if  the  pun- 
ishment were  less  than  death,  he  should  undoubtedly  consider  it  as  his 
absolute  duty  to  bring  the  offender  to  justice.  He  believes  that  nine 
tradesmen  out  of  ten  agree  with  him. 

"  Mr.  Stephen  Curtis,  a  leather  faetor  in  London,  stated  several  cases 
of  forgery,  fraudulent  bankruptcy,  and  larceny,  where  the  persons 
injured  declined  to  prosecute  from  apprehension  that  the  offenders 
might  suffer  death  ;  this  is  the  general  opinion  of  the  traders  of  Lon- 
don, though  in  the  opinion  of  this  witness,  scarcely  a  shopkeeper  from 
Cornhi'.l  to  Cliaring-cross,  who  does  not  suffer  from  shop-lifting. 

"  Mr.  Jacob,  who  has  lately  travelled  through  England  on  business^ 
and  Mr.  Jennings,  for  some  time  a  shopkeeper  near  Bridgewater, 
gave  some  evidence  tending  to  show  that  the  general  sentiments  of 
Traders  in  the  country  were,  on  capital  punishments,  the  same  which 
the  Committee  had  such  ample  reason  to  consider  as  the  prevalent 
opinion  of  the  same  valuable  class  of  persons  in  the  Metropolis. 
Mr,  Jennings  observed,  that  these  opinions  prevailed  among  farmers 
as  well  as  shopkeepers,  and  that  the  capital  punishment  prevented 
prosecutions  for  horse,  cattle  and  sheep  stealing,  as  well  as  from  pri- 
vate stealing  in  shops  and  dwelling  houses,  and  in  constructive  bur- 
glaries. 

"  Mr.  Joseph  Harmer,  who  has  practised  for  twenty  years  as  solicitor 
at  the  Old  Bailey,  gave  a  testimony  which  the  Committee  cannot  but 
recommend  to  the  most  serious  consideration  of  the  House.  In  the 
course  of  his  practice  he  had  confidential  communication  with  at  least 
two  thousand  capital  convicts,  and  may  be  presumed  to  have  as  good 
means  of  understanding  their  temptations,  their  fears  and  their  hopes, 
as  any  individual  in  the  kingdom.  He  is  now  much  employed  by 
prosecutors,  and  from  intercourse  with  them,  as  well  as  by  former  ob- 
servation of  their  conduct,  has  the  amplest  means  of  knowing  the  in- 
fluence which  capital  punishment  has  on  their  disposition,  to  aid  and 
enforce  the  execution  of  the  laws.  The  Committee  must  also  add,  that 
he  appeared  to  them  a  man  of  sagacity,  as  well  as  of  a  consrientious 


\ 


80 


and  humane  character,  whose  opinions  on  this  subject  are  entitled  to 
much  consideration.  Every  part  of  his  evidence  is  so  important,  that 
they  find  it  difficult  to  select  particular  facts  as  worthy  of  greater  no- 
tice. He  informed  the  Committee,  that  he  knew  many  instances  of 
persons  injured  by  larcenies  and  forgeries,  declining  to  prosecute  on 
account  of  the  punishment;  that  the  same  consideration  strongly  dis- 
inclines many  persons  to  serve  as  jurors  at  the  Old  Bailey,  and  induces 
them  to  bribe  the  summoning'  officer  not  to  summon  them  ;  and  that 
he  has  seen  juries  influenced,  as  he  believes,  by  the  severity  of  the 
punishment  in  numerous  capital  cases,  but  especially  in  forgeries,  give 
verdicts  of  acquittal  where  the  proofs  of  the  prisoner's  guilt  was  per- 
fectly clear.  Old  professed  thieves,  aware  of  the  compassionate  feel- 
ings of  juries,  are,  he  says,  desirous  of  being  prosecuted  on  capital  in- 
dictments rather  than  otherwise.  "  The  present  numerous  enactments 
to  take  away  life  appear  to  me  wholly  ineffectual  ;  but  there  are  pun- 
ishments, which  I  am  convinced  a  thief  would  dread,  namely,  a  course  of 
discipline  totally  reversing  his  former  habits ;  idleness  is  one  of  the  prom- 
inent characteristics  of  a  professed  thief ;  put  him  to  labour;  dabauche- 
ry  is  another  quality,  abstinence  is  its  opposite  ;  apply  it ;  company 
they  indulge  in,  they  ought  therefore  to  experience  solitude  :  they  are 
accustomed  to  uncontrolled  liberty  ef  action,  I  would  impose  restraint 
and  decorum  :  were  these  my  suggestions  adopted,  I  have  no  doubt 
we  should  find  a  considerable  reduction  in  the  number  of  offenders." 
He  states,  that  "  he  has  often  seen  juries  reduce  the  value  of  things 
stolen,  contrary  to  clear  proof ;  there  is  no  reluctance  to  prosecute  or 
convict,  in  his  opinion,  in  murder,  arson,  burglary  in  its  original  sense 
of  nocturnal  housebreaking,  highway  robbery,  with  vio'?nce  and  mur- 
derous attacks  on  the  person.  The  thieves  observe  the  sympathy  of 
the  public ;  it  seems  to  console  them,  and  they  appear  less  concerned 
than  those  who  witness  their  sentence.  Certainly,  the  general  feeling 
does  not  go  along  with  the  infliction  of  death  in  the  case  of  crimes  unac- 
companied by  violence;  there  are  very  few  advocates  for  the  gene- 
rality of  the  present  punishments ;  these  punishments  rather  tend  to 
excite  the  public  feeling  against  the  Criminal  Laws." 

"  Much  of  the  above  evidence  sufficiently  establishes  the  general  dis- 
inclination of  traders  to  prosecute  for  forgeries  on  themselves,  or  to 
furnish  the  Bank  of  England  with  the  means  of  conviction,  in  cases 
where  forged  notes  are  uttered.   There  is  no  offence  in  which  the  in 


81 


fliction  of  death  seems  more  repugnant  to  the  strong  and  general  and 
declared  sense  of  the  public,  than  forgery ;  there  is  no  other  in  which 
there  appears  to  prevail  a  greater  compassion  for  the  offender,  and 
more  horror  at  capital  executions. 

"  In  addition  to  the  general  evidence  above  stated,  to  notorious  facts, 
and  to  obvious  conclusions  of  reason,  Your  Committee  have  to  state 
the  testimony  of  some  witnesses  of  peculiar  weight,  on  the  subject  of 
Forgery. 

"  Mr.  John  Smith,  a  Member  of  the  House,  and  Banker  in  London, 
stated,  that  he  knew  instances  where  prosecutions  for  private  forgeries 
were  relinquished  on  account  of  the  punishment,  and  had  no  doubt 
that  if  the  punishment  was  less,  prosecutions  would  have  taken 
place. 

"  Mr.  Burnett,  also  a  Member  of  the  House,  and  a  Banker  in  London, 
is  of  opinion,  that  capital  punishment  goes  extremely  to  discourage 
prosecutions  in  forgery  ;  he  knows  many  instances  of  this,  scarcely  a 
year  passed  without  something  of  the  kind;  he  is  of  opinion  that  the 
majority  of  private  forgeries  pass  unpunished,  on  account  of  the  seve- 
rity of  the  punishment.  The  punishment  of  death  tends,  in  bis  opin*- 
ion,  to  prevent  prosecution,  and  to  increase  the  crime. 

"  Mr.  J.  F.  Forster,  a  Russia  Merchant,  and  Mr.  E.  Forster,  a  Bank- 
er in  London,  gave  some  remarkable  examples  of  the  repugnance  to 
prosecute  in  forgery.  In  one,  by  the  connivance  of  the  prosecutor ; 
a  person  who  was  introduced  to  the  magistrate  as  a  friend  of  the  pri- 
soner's, desired  to  see  the  forged  cheque,  snatched  it  away,  and  threw 
it  into  the  fire ;  a  mode  of  avoiding  prosecution  which,  from  other 
parts  of  the  evidence,  does  not  seem  to  be  uncommon.  In  another, 
a  forgery  to  the  large  amount  of  fifteen  hundred  pounds,  where  the 
forger  and  the  utterer  were  both  in  custody,  the  prosecution  was  re- 
linquished merely  because  the  offence  was  capital ;  had  the  punishment 
been  ever  so  severe,  short  of  death,  no  endeavour  would  have  been 
made  to  save  the  offenders  In  the  opinion  of  Mr.  E.  Forster,  more 
than  one  half  the  private  forgeries  which  are  committed  escape  prosf- 
cution  on  account  of  the  severity  of  the  law ;  he  added  an  exanii)le 
of  the  like  sentiments,  in  the  offence  of  stealing  in  a  dwelling  house, 
which  the  Committee  consider  as  remarkable,  because  it  occurred  in 
tlie  officers  of  a  public  institution,  who  usually  allow  themselves  to  be 
VSsi  influenced  by  their  feelings  than  individuals  j  a  committee  of  a 


82 


public  institution,  whose  house  had  been  robbed,  would  not  engage  in 
the  prosecution  unless  the  goods  were  valued  under  forty  shillings. 
In  this  committee  were  persons  of  respectable  condition  in  almost  all 
the  occupations  which  are  most  liable  to  loss  by  forgeries  and  thefts. 

"  Mr  Fry,  a  Banker  in  London,  mentioned  four  cases  of  prosecution 
for  forijery  which  were  prevented  by  the  capital  punishment,  in  one 
of  which  the  party  injured  swallowed  the  forged  note,  that  he  might 
not  be  compelled  to  prosecute.  Mr.  Fry  explicitly  stated,  what  is 
indeed  implied  in  the  evidence  of  the  preceding  witnesses,  that  as  a 
banker,  he  should  consider  his  property  as  much  more  secure  if  the 
punishment  of  forgery  were  mitigated  to  such  a  degree  that  the  law 
against  that  offence  would  be  generally  enforced.  In  nine  cases  out 
of  ten  of  forgery  which  he  has  known,  there  has  been  an  indisposition 
to  prosecute. 

"  Dr.  Lushington  declared  that  he  knew,  that  in  the  minds  of  many 
persons  there  is  a  strong  indisposition  to  prosecute,  on  account  of  the 
severity  of  the  punishment ;  and  that  he  had  heard  from  the  mouths  of 
prosecutors  themselves,  who  have  prosecuted  for  capital  offences, 
where  there  was  a  danger  of  the  person's  being  executed,  the  greatest 
regret  that  they  had  so  done ;  and  many  times  they  have  expressed  a 
wish,  that  had  they  been  able  to  have  foreseen  the  consequences,  they 
would  never  have  resorted  to  the  laws  of  their  country.  He  also  re- 
lated the  case  of  a  servant  who  committed  a  robbery  upon  him ;  the 
man  was  apprehended,  and  his  guilt  was  clear ;  but  Dr.  Lushington 
"  refused  to  prosecute,  for  no  other  reason,  but  that  he  could  not  in- 
duce himself  to  run  the  risk  of  taking  away  the  life  of  a  man. 

"  Mr.  Charles  Attwood,  a  manufacturer  of  window  glass  at  New- 
castle, and  a  seller  of  window  glass  in  London,  had  observed  a  very 
considerable  indisposition  to  prosecute  in  capital  cases,  among  the 
traders  of  London  generally ;  and  conceives  that  this  reluctance  would 
abate,  if  the  punishment  were  mitigated  to  something  less  than  death. 

"  Mr.  Isaac  Lyon  Goldsmid,a  broker  to  the  bank,  and  to  merchants, 
■whose  experience  in  the  transactions  of  bankers  is  very  extensive,  en- 
tertains no  doubt,  that  the  punishment  of  death  has  a  tendency  gene- 
rally to  prevent  prosecution,  and  thinks  that  evidence  to  that  effect 
might  be  discovered  in  hundreds  of  instances.  A  servant  of  his  own 
committed  a  very  aggravated  forgery  upon  him.  She  confessed  her 
guilt  to  the  magistrate  before  whom  she  was  taken  j  but  it  appearing 


83 


that  if  she  was  prosecuted  at  all,  it  must  be  capitally  Mr.  Goldmid 
declined  all  further  proceedings,  and  she  was  liberated.  In  the  next 
family  in  which  she  became  a  servant,  she  committed  another  capital 
felony  ;  and  again  the  severity  of  the  law  appears  to  have  been  her 
protection. 

"  Mr.  Daniel  Gumey,  a  banker  in  the  County  of  Norfolk,  declared 
his  own  reluctance,  and  had  observed  a  similar  reluctance  among  many 
bankers  and  traders  in  the  country  to  prosecute  in  cases  of  forgery,  in 
consequence  of  the  severity  of  the  law.  The  dread  of  being  instru- 
I  mental  in  inflicting  death  had,  with  himself,  and  to  ins  knowledge  with 
others,  operated  as  a  protection  to  the  criminal.  In  illustration  of  his 
sentiments,  he  mentioned  the  case  of  a  man  who  was  in  the  habit  of 
committing  forgery,  "  and  was  not  prosecuted  in  consequence  of  the 
capital  punishment."  M?:  Garney  considers  that  "  his  property  as  a 
banker  would  be  more  secure,  if  the  punishment  were  not  so  severe, 
because  there  would  be  more  inclination  to  prosecute."  He  also  sug- 
gested, that  if  in  every  town  of  sufficient  importance,  an  agent  was  in- 
vested with  full  authority  from  the  Bank  of  England,  to  stamp  the  for- 
ged  notes  that  were  presented  to  him,  it  would  be  a  considerable  check 
to  their  circulation. — In  this  opinion  Mr.  William  Birkbeck,  a  banker 
in  the  West  Riding  of  York,  fully  concurred ;  conceiving  that  if  an 
agent  of  this  kind  were  authorized  to  put  a  mark  upon  such  notes,  in- 
dicating that  they  were  forged,  it  would  probably  throw  them  back  on 
the  original  issuer  so  early,  as  to  show  him  the  futility  of  attempting  to 
issue  others  of  a  similar  description." 

-«9IIII1#>IIII"=- 

MR.  ROSCOE  S  VIEWS  ON  CAPITAL  PUiNISHMENTS. 

The  Committee  extract  the  following  arguments,  on  the  great  subject 
under  this  head,  from  Mr.  Roscoe's  very  elegant  and  able  book  on 
Penal  Jurisprudence.  We  wish  to  awaken  the  slumbers  of  the 
American  people :  we  wish  to  correct  the  errors  that  are  gaining 
ground. 

ON  THE  PUNISHMENT  OF  DEATH. 

"If  it  be  true,  as  before  staged,  that  the  proper  object  of  human  pun- 
Ament  is  the  reformation  of  the  offender,  it  will  follow,  as  a  necessa- 


84 


ry  GOhsequence,  that  it  is  not  allowable,  under  tny  combination  et 

circumstances,  to  put  a  fellow  creature  to  death. 

In  order  to  prevent  the  perpetration  of  sanguinary  crimes  it  seems, 
in  the  first  place,  necessary,  that  the  legislature  should  shew  its  ab- 
horrence of  the  shedding  of  blood,  and  should  inculcate,  in  the  strong- 
est manner,  a  sacred  regard  for  human  life. 

A  sentiment  of  this  nature,  impressed  upon  the  feelinps  of  a  peo. 
pie,  would  be  more  efficacious  in  preventing  the  crime  of  murder,  than 
the  severest  punishments. 

Cicero  calls  his  country  "Parens  communis," — what  should  we 
think  of  a  parent  who  corrects  his  child  by  putting  him  to  death  ? 

"  The  case  of  a  civil  ruler  and  his  subject,"  says  a  sensible  and 
energetic  writer,  is  much  like  that  of  a  father  and  his  minor  son.  If 
the  son  behave  himself  unseemly,  the  father  may  correct  him.  If 
after  all  due  admonitions,  and  corrections,  the  son  should  prove  to  b' 
incorrigible,  the  father  may  expel  him  from  his  family,  and  he  mn> 
disinherit  him;  but  he  may  not  kili  him.  AW  civil  as  well  as  paren« 
tal  punishments  ought  to  be  mild,  humane,  and  corrective ;  not  vin- 
dictive, inhuman  and  extirpating.  They  ought  to  be  merciful,  not 
rigorous ;  proportionate  to  the  crime,  not  excessive  ;  and  tend  to  the 
reformation  of  the  delinquent,  but  not  to  his  destruction  ;  and  should 
be  inflicted  with  reluctance,  love  and  affection  ;  not  with  passion,  hard* 
heartedness,  and  asperity.  The  highest  encomium  that  can  be  be- 
stowed on  good  rulers  is  when  we  style  them,  tlie  faUiers  of  their 
subjects,  and  the  protectors  of  their  rights."  * 

It  is  remarkable  that  those  persons  on  whom  the  example  of  capital 
punishments  is  chiefly  intended  to  operate,  are  usually  such  as  have 
manifested  the  most  striking  disregard  to  their  own  lives ;  consequent- 
ly, those  upon  whom  the  idea  of  the  punishment  ef  death  is  likely  to 
make  the  least  impression.  A  person  who  voluntarily  places  himself 
before  the  aim  of  a  pistol,  cannot  be  supposed  to  be  deterred  from 
that  act  by  any  apprehension  of  his  life  from  remoter  consequences. 

It  has,  therefore,  been  proposed  to  place  the  murderer  in  such  i 
situation  as  should  effectually  prevent  a  repetition  of  his  crime ;  where, 
instead  of  escaping  from  ignominy  and  remorse  by  immediate  death,  he 


'  Essays  oii  CapUal  Punidiments.  Philadel.  1811.  Sepubliihed  by  Basil  Mm- 
fogu,  Eiq.  tn  bis  CoUcelion  of  Opinions  on  the  Ftetu^iment  of  DtalK-  \o\.  iii. 
p.  169. 


may  exhibit,  by  a  long  course  of  humiliation  and  repentance,  the  fatal 
^nseqiiences  of  his  guilt. 

The  eflects  produced  by  such  an  example  might  be  advantageous, 
uiihout  being  counteracted  by  other  considerations.  Whether  the 
jjiectators  who  attend  an  execution,  may  be  deterred  from  similar 
crimes  by  witnessing:  such  a  catastrophe  ;  or  whether  they  may  be- 
come in  some  degree  hardened  against  the  feelings  of  humanity,  by 
the  frequent  recurrence  of  such  spectacles,  may  at  least  be  doubtful 
but  a  murderer,  under  restraint  and  correction  for  his  crime,  is  an  ob- 

t,  the  sight  of  which,  combining  Rt  once  the  enormity  of  the  of- 

nee  with  the  dignified  forbearance  of  the  law,  must  always  be  fa- 
vourable to  the  best  interests  of  the  community. 

Hence  there  is  reason  to  presume,  that  punishments  of  this  nature 
would  tend  more  effectually  to  the  prevention  of  crimes,  than  the  dread 
of  immediate  death ;  in  which  scene  the  crirainal  is  th^  chief  actor, 
and  not  unfrequently  appears  with  considerable  eclat.  In  fact  offen- 
ces that  subject  the  perpetrators  to  death  are  committed  no  where  more 
frequently  than  at  executions ;  and  the  horrible  spectacle  of  the  expo- 
sed body  of  a  murderer  seems  to  be  only  the  prelude  to  similar  crimes. 

But  if  legislators  and  writers  of  great  eminence  have  entertained 
considerable  doubts,  both  as  to  the  right  and  the  expediency  of  capital 
punishment,  even  for  the  most  heinous  offences,  how  is  it  possible  to 
justify  the  application  of  it  to  such  crimes  as  affect  property  only,  and 
that  frequently  to  a  very  trivial  amount .''  "  Among  the  variety  of 
actions  tliat  men  are  daily  Uable  to  commit,  no  less  than  two  hundred 
have  been  declared  by  act  of  Parliament,  to  be  felonies  without  benefit 
of  clergy,  or  in  other  words,  to  be  worthy  of  instant  death.  When 
we  inquire  into  the  nature  of  the  crimes  of  which  this  dreadful  cata- 
logue is  composed,  we  shall  find  it  to  contain  transgressions  which 
scarcely  deserve  corporal  punishment ;  we  shall  find  it  to  omit  atro- 
cious enormities ;  and  so  to  blend  all  distinctions  of  guilt,  as  to  inflict 
tlie  same  punishment  upon  the  offender  whg  steals  to  the  amount  of  y 
•ew  shillings  in  a  shop,  as  upon  the  malefactor  who  murders  his  fa- 
ther."* 

Nor  is  it  only  for  the  actual  privation  of  property  that  the  punisii- 
raent  of  death  is  provided ;  even  many  offences  whicli  seem  to  be 


'  Speech  of  Sir  John  AnitrutheriD  the  House  of  Comraonii,  1811. 


8d 

merely  legal  trespasses,  are  included  by  the  legislature  in  the  black 
catalogue  of  capital  crimes.  Such  offences  are  undoubtedly  the  pro- 
per objects  of  a  correctional  police,  but  surely  no  humane  or  conside- 
rate person  can  for  a  moment  admit  that  they  ought,  in  a  well  regulated 
community,  to  be  punished  with  death.  "  It  must  be  owned,"  says 
Blackstone,  "that  it  is  much  easier  to  extirpate,  than  to  amend  man- 
kind ;  yet  that  man  must  be  esteemed  both  a  weak  and  a  cruel  sur- 
geon, who  cuts  off  every  limb,  which  through  indolence  or  ignorance, 
he  will  not  attempt  to  cure." 

"  It  cannot  be  too  strongly  inculcated,"  says  a  noble  and  excellent 
writer  on  this  subject,  "  that  capital  punishments,  when  unnecessary, 
are  inhuman  and  immoral.  Sensibility  sleeps  in  the  lap  of  luxury, 
and  the  legislator  is  contented  to  secure  his  own  selfish  enjoyments 
by  subjecting  his  fellow  citizens  to  the  miseries  of  a  dungeon,  and 
the  horrors  of  an  ignominious  death."*  So  true  it  is,  that  the  most 
cruel  and  unjustifiable  laws  are  those  which  are  intended  to  effect  their 
j)urpose  by  a  sudden  and  decisive  process ;  as  if  the  promulgater  had 
thereby  freed  himself  from  all  further  danger  and  trouble  on  the  sub- 
ject. "  This  summary  way  of  proceeding  by  capital  punishments," 
says  a  distinguished  writer  of  the  present  day, "  though  it  may  assume 
the  appearance  of  vigilance  and  zeal  in  the  public  service,  is,  in  reali- 
ty, too  well  adapted  to  the  indolence  or  the  pride  of  men,  in  making 
laws  which  tliey  are  themselves  under  little  temptation  to  violate.  It 
presents  itself  readily  to  the  coarsest  understanding,  and  you  fly  to  it 
with  little  reflection,  though  upon  a  collective  view  of  all  the  circum- 
stances which  ought  to  regulate  the  measure,  it  will  be  found  to  re- 
quire the  greatest. "t 

Had  it  not  been  from  the  influence  of  examples  handed  down  to 
the  present  times  from  ages  of  the  darkest  ignorance,  it  would  scarcely 
be  possible  to  conceive  how  we  could  tolerate  laws  that  involve  such 
a  great  variety  of  offences,  so  different  in  their  nature,  in  one  common 
punishment ;  not  only  with  the  most  flagrant  injustice,  but  with  the 
greatest  danger  to  every  member  of  the  community,  whose  life  is  thus 
placed  in  a  constant  competition  with  objects  of  the  most  trivial  and 
worthless  description,  and  is  liable  to  be  sacrificed  to  the  security  of 


*  Edtns  Ptnal  Law,  pp.  237,  291. 

\  Characters  of  C.  J.  Fox,hij  Philopatris  Varvicemis.   Vol.  ii  p.  468. 


87 


uiTenders,  against  the  consequences  of  very  inferior,  and  comparative- 
ly unimportant,  crimes.  To  commit  a  murder,  or  to  free  a  person 
from  an  arrest ;  to  burn  a  dwelling  house  ami  its  inhabitants,  or  to 
burn  a  hatfstack;  to  commit  a  parricide,  or  to  obstruct  an  officer  of 
th  t  revenue  in  the  seizure  of  prohibited  goods  ;  to  break  into  a  dwel- 
ling house  at  midnight,  or  to  cut  down,  or  otherwise  destroy  a  tree  in 
a  garden  ;  to  poison  a  family,  or  to  maim  or  wound  a  cow — Is  it  pos- 
sible to  conceive,  that  if  ein  enlightened  and  humane  legislature  had 
undertaken  to  form  a  code  of  laws  for  a  civilized  country,  they  could 
liavc  adopted  such  measures  as  these,  which  are  not  less  dangerous  to 
the mselve*, than  intrinsically  extravagant  and  unjust;  and  which  might 
render  it  indispensable  to  the  life  of  the  poor  wretch,  who  is  cutting  a 
e  in  a  plantation,  to  murder  the  owner,  who  may  unwillingly  have 
;  his  power  to  give  that  evidence  which  may  take  the  forfeited  life 
of  the  offender  ? 

■  ich  in  fact  is  the  present  state  of  the  criminal  law  in  this  country, 
^  it  seems  to  be  universally  admitted,  that  tf  it  were  to  be  carried 
nti)  strict  execution,  it  would  form  the  bloodiest  system  of  legislation, 
)y  which  any  nation,  ancient  or  modern,  ever  punished  itself.  Instead 
hei  efore  of  attempting  to  vindicate  our  present  institutions  of  criminal 
u\v  upon  any  principle  of  reason  and  justice,  it  is  usual  for  those  who 
vi-,h  for  their  continuance,  to  contend  that  they  are  not  intended  to  be 
arried  into  effect,  but  are  only  meant  to  furnish  the  judicial  authori- 
ies  with  sufficient  power  to  include  every  description  of  crime,  and> 
,t  the  same  time,  to  allow  such  an  exercise  of  discretion,  as  may  give 
o  a  severe  law  a  mild  and  temperate  execution.  To  such  an  extreme 
las  this  idea  been  carried,  that  a  very  popular  modern  writer*  has 
rected  upon  it  a  system  of  legislation,  which  he  denominates  the 
•  Law  of  England,''  which  as  he  informs  us,  "  by  the  number  of 
tatutes  creating  capital  offences,  sweeps  into  the  net  every  crime, 
■rhich  under  any  possible  circumstances,  may  merit  the  punishment  of 
leath ;  bid  when  the  execution  of  this  sentence  comes  to  be  deliberated 
'pon,  a  small  proportion  of  each  class  are  singled  out,  the  general 
haracter,  or  the  particular  aggravations  of  whose  crimes,  render 
hem  fit  examples  of  public  justice  ;  and  by  this  expedient,  few  actu- 
ally suffer  death,  whilst  the  dread  and  danger  of  it  hang  over  the 


"  Dr.  Paley. 


crimes  of  tmni/J"  Tliis  attempt  to  represent  as  a  preconceived  and  , 
regulated  system  of  legislation,  a  state  of  our  judicial  concerns,  which  i 
has  arisen  from  the  mere  impossibility  of  carrying  such  sanguinary 
measures  into  effect,  is  not  less  repugnant  to  the  truth,  than  it  is  fo- 
reign to  the  ideas  of  our  ancestors ;  who,  however  they  might  err  on 
the  side  of  severity,  were  certainly  sincere  in  their  hostility  against 
crimes,  and  intended  their  enactments  should  be  carried  into  effect. 
The  fallacy  of  this  statement  has  been  fully  shewn  by  Sir  Samuel 
Romilly,*  by  whose  enlightened  efforts  and  indefatigable  exertions, 
some  of  the  most  cruel  and  obnoxious  of  these  statutes  have  been  re- 
pealed.t  It  is  not  however  by  the  success  that  has  attended  his  la- 
bours, that  we  must  estimate  what  is  due  from  the  community  to  this 
real  patriot  and  distinguished  senator.  The  reforms  effected  by  him, 
bear  indeed  a  small  proportion  to  the  enormous  mass  of  sanguinary 
enactments  which  disgrace  our  statute  book  ;  but  the  maxims  of  legis- 
lation which  he  has  laid  down,  and  the  sound  principles  for  which  ht 
has  contended,  apply  to  the  whole  system  ;  and  will,  it  may  confident- 
ly be  hoped,  eventually  produce  such  alterations  as  may  remove  from 
our  judicial  code,  the  imputation  of  cruelty  on  the  one  hand,  and  pre- 
vent the  impunity  of  the  criminal  on  the  other. | 

In  fact,  it  is  in  this  ill-judged  lenity,  or  rather  inefficacy  of  the  law,. 


*  In  his  tract  entitled  "  Observalions  on  Ihe  Criminal  Law  of  England,"  as  weif 
as  in  his  speeches  in  parliament. 

i  In  particular,  the  8th  Eliz.  c.  4.  by  which  larceny  from  the  person  above  th« 
value  of  ltd.  was  made  felony  without  benefit  of  clergy,  and  the.  English  and 
Irish  statutes  which  punished  the  stealing  from  bleaching  grounds  with  death, 
lu  the  session  of  1812,  an  act  was  also  passed  to  repeal  the  statute  of  Eliz.  which 
made  it  a  capital  offence  for  soldiers  or  mariners  to  wander  or  beg  without  a' 
pass. 

tMay  this  expectation  be  accomplished  !  for,  since  the  above  was  written,  the 
world  has  been  deprived  of  the  illustrious  individual  to  whom  it  relates,  and  can 
DOW  only  avail  itself  of  the  lessons  which  he  has  left  for  its  improvement !  May 
we  not,  however,  venture  to  hope,  from  the  sincere  sympathy  and  universal 
grief  which  this  event  has  occasioned,  that  the  cause  he  so  warmly  espoused, 
and  the  sentiments  he  so  forcibly  eipressed,  are  deeply  felt  by  the  nation  at 
large  And  that  his  loss  will,  as  far  as  possible,  be  repaired  by  an  increased  de- 
termination on  their  part  to  promote  the  great  and  beneficent  objects  which  be 
so  faithfully  pursued  Such  a  result  of  his  labours  may  delight  his  sjiirit,  and 
add  lu  his  happiness  in  the  region;  of  the  blest. 


89 


that  we  discover  one  great  cause  of  the  extraordinary  profligacy  and 
depravity  of  the  present  day.  Offenders  of  every  description,  harden- 
ed and  instructed  in  wickedness,  are  acquitted  by  our  courts  and  libe- 
rated from  our  gaols,  to  renew  their  depredations  on  the  community. 
Such  is  the  inevitable  consequence  of  enacting  a  punishment  wholly 
inapplicable  to  the  crime,  that  the  public  suffers,  whilst  the  criminal 
escapes.  He  has  indeed  been  meshed  in  the  great  net  of  the  law, 
but  this  net  retains  scarcely  one  in  a  thousand,*  and  he  has  escaped 
so  often,  that  he  has  little  fear  of  encountering  another  trial.  Such 
»s  the  acknowledged  barbarity  of  our  laws,  and  such  the  more  enlight- 
ened and  humanized  state  of  the  public  feeling,  that  they  are  no  long- 
er compatible  with  each  other.  Accordingly  we  perceive  on  every 
hand  indications  that  a  further  perseverance  in  our  present  track  will 
not  long  be  possible.  Whilst  our  institutions  continue  in  their  present 
form,  persons  injured  frequently  will  not  prosecute — witnesses  will  not 
attend — juries  will  not  convict,  and  judges  cannot  condemn. t  In  the 
mean  time,  guilt  and  rapacity  raise  their  heads  with  renewed  insolence, 
and  brave  the  ministers  of  law  on  the  seat  of  justice.  Such  a  state 
of  things  cannot,  it  is  evident,  admit  of  delay.  It  has  been  proposed 
by  many  excellent  men,  that  attempts  should  be  made  to  apportion 
panishments  to  offences,  so  that  every  crime  should  have  its  appro- 
priate penalty ;  but,  to  say  nothing  of  the  acknowledged  and  nume- 
roBS  difficulties  which  must  attend  the  completion  of  such  a  task,  if 
the  public  are  to  wait  till  the  endless  diversity  of  opinion  to  which 
this  subject  would  give  rise  be  reconciled,  all  prospect  of  redress 
would  be  hopeless.  Let  it  not  however  be  imagined,  that  the  public 
depredator,  the  hardened  criminal,  is  to  be  suffered  to  persist  in  his 


•  It  was  stated  in  the  House  of  Commons,  in  the  debate  on  the  shop-lifting 
lud  canal  bills  (Feb.  1810)  that  out  of  1872  persons  who  had,  in  the  course  of 
even  years,  been  committed  to  Newgate,  for  stealing  in  dwelling  bouses,  only 
me  was  executed. 

t  "  At  Carnarvon  Sessions  (1813)  J.  Jones,  a  drover,  was  tried  for  uttering 
"orged  bank  notes,  and,  notwithstanding  thirty-one  witnesses  established  the 
barge,  and  Mr.  Glover,  inspector  to  the  Bank  of  England,  traced  thirty-nine 
otes  to  have  been  paid  by  the  prisoner,  the  jury  returned  a  verdict  of  noJ  guilly. 
leU  day,  the  same  prisoner  was  indicted  for  having  forged  notes  in  his  posses- 
iOD,  and  the  jury  again  returned  a  verdict  of  not  guilty." — The  records  of  our 
'oiBTts  of  Justice  abound  with  similar  instances 


M 


90 


guilt.  Let  his  hopes  of  impunity  be  dispelled,  and  his  fears  be  awa- 
kened by  buildings  rising  in  every  county  and  every  city  of  the  king- 
dom, calculated  to  repress  his  enormities,  to  subdue  his  obstinacy,  to 
form  him  to  new  habits  and  better  dispositions,  to  render  him  sensible 
of  his  misconduct,  and  enable  him  to  provide  for  himself  by  honest 
industry  : — let  the  Courts  of  Justice,  instead  of  dismissing  offenders, 
to  commence  a  new  career  of  crimes,  deliver  them  over  to  these  no 
less  effective  than  truly  benevolent  institutions ;  vvhere,  as  has  already 
been  shewn  by  ample  experience,  there  is  every  reason  to  expect  that 
a  great  majority  may  be  redeemed  from  their  guilt,  and  restored  to  so- 
ciety ;  or,  if  this  should  not  be  found  in  all  cases  practicable,  the  com- 
munity at  large  will  derive,  from  the  very  efforts  that  may  be  made 
for  this  purpose,  the  inestimable  benefit  of  being  freed  from  the  de- 
predations of  the  innumerable  hordes,  who  are  at  present  its  annoy- 
ance and  its  dread,  and  the  sacred  delight  arising  from  the  performance 
of  the  first  of  christian  duties. 

-«»imi^iiiii»- 

NEW-YORK  SENATE. 

The  following  Report  has  been  laid  before  the  New- York  Senate,  by 
the  Hon.  Samuel  M.  Hopkins,  within  a  few  days  past.  It  looks 
well  for  the  work  of  reform.  , 

Report  of  the  Committee  on  the  Criminal  Law,  and  the  employment 
of  convicts  on  the  catials. 

Mr.  Hopkins,  from  the  select  committee  to  whom  was  referred  so 
much  of  the  speech  of  his  Excellency  the  Governor  as  relates  to  the 
criminal  law,  and  the  employment  of  convicts  on  the  canals,  reported 
as  follows,  to  wit : 

That  the  particular  points  and  questions  in  the  criminal  law,  which 
his  Excellency  has  mentioned,  and  to  which  therefore,  the  attention  of 
your  committee  has  been  required,  appear  to  be  the  following  : 

1.  Our  experiment  of  a  mild  system  of  punishment,  intended  to 
prevent  crimes,  and  reform  criminals,  and  the  result  of  that  experi- 
ment : 

2.  The  doubt  expressed  whether  we  have  not,  in  our  anxiety  foi 
reformation,  neglected  the  superior  importance  of  prevention  : 

3.  The  improvements  suggested  to  be  made,  by  the  moral  classifi- 


9t 


dtion  of  offenders ;  by  the  adoption  of  solitary  conSnement ;  by  the 
establishment  of  separate  prisons  for  those  wlio  are  doomed  to  severe 
punishment;  by  a  graduation  of  punishments  in  solitary  cells,  and 
finally  by  abridging  the  duration  of  imprisonment. 

The  consideration  of  these  subjects  has  led  the  committee  to  exa- 
diine  our  whole  system  of  punishment,  whether  considered  as  a  means 
of  prevention  or  of  reformation  ;  and  the  question  of  imprisonment 
jn  particular,  has  led  them  to  consider  the  prisons,  and  the  means  and 
objects  of  confinement  in  them,  with  the  actual  treatment  of  prison- 
ers and  its  effects ;  whether  we  have  such  prisons  as  are  sufficient  and 
•  proper  ;  if  not,  whether  we  can  and  ought  to  build  others  ;  what  will 
be  the  expense,  and  what  ought  to  be  the  discipline  observed  in  them  ; 
finally,  what  other  punishments  can,  with  a  proper  regard  to  the  state 
of  public  opinion,  be  now  adopted. 

For  the  more  perfect  understanding  of  these  subjects,  it  seemed 
useful  to  examine  the  authentic  history  of  our  state  prison  system 
from  the  beginning ;  as  it  is  contained  in  our  legislative  acts  and  re- 
ports, and  in  the  reports  and  proceedings  of  successive  legislative 
committees,  and  special  commissions,  and  in  the  reports  of  the  treasury 
and  the  detailed  statements  of  the  inspectors  and  officers  of  the  prisons. 
Such  documents,  more  especially  for  the  last  twenty  years,  have  been 
examined  by  the  committee,  who  are  of  opinion  that  they  ofifer  many 
results  which  cannot  fail  to  be  instructive. 
]/  It  appears  that  since  the  year  1796,  the  whole  amount  of  our  appro- 
priations for  the  building  and  repairs  of  the  two  state  prisons  has 
I  been  $535,189  83 

li  And  the  total  amount  of  expenditure  for  the  support  of 
[t«     the  prisons  and  incidental  expenses,  is  977,732  64 

Making  in  all,  $1,512,922  47 

The  total  number  of  convicts  committed,  has  been  5,069 
)f  which  number  more  than  half  have  been  pardoned, 
that  is  2,819 
Of  the  whole  number  of  convicts,  considerably  less  than  one  half 
jre  natives  of  this  state,  and  nearly  one  third  are  from  foreign  cotin- 
ries;  the  rest,  of  course,  are  from  the  United  States. 
The  average  number  of  prisoners  from  the  returns  of  the  last  six 


92 


years,  is  745.  By  the  last  returns  the  total  present  number  in  both 
prisons  is  817,  which  is  larger  tiian  that  of  any  former  year. 

The  actual  expense  of  the  crimineils  maintained  in  these  prisons  has 
been  estimated,  according  to  an  average  of  the  last  six  years,  for  the 
prison  in  New- York,  and  of  three  years  for  that  at  Auburn,  [the  latter 
being  a  recent  establishment,]  and  the  committee  calculate  it  as  fol- 
lows : 

The  New- York  prison  and  repairs,  has  cost  $253,346 
Auburn  do  281,843  83 


535,189  83 

On  which  sum,  to  cover  interest,  repairs,  and  insurance,  the  charge 

ought  to  be  10  per  cent  per  annum  •  say  53,518  98 
Average  expense  per  annum  of  transporting  convicts  to 

prison,  9,704 

do.    the  expenses  of  sheriffs  y,Si50,  suppose  half 

for  this  object,  4,625 

do.  do       of  district  attornies.    N.  B.  As 

they  have  been  paid  the  last  three  years  by  the  coun- 
ties, the  average  of  those  years  is  taken  in  a  due 
proportion  to  the  three  previous  years,  compared 
with  the  sheriff's  bills,  f  13,933 

Suppose  half  for  this  object,  6,966  50 

Salaries  of  officers  at  the  New- York  prison,  12,989  67 

Expense  of  guard  at  do.  7,531  33 
All  other  expenses,  [under  this  head  come  support  and 

clothing,]  22,948  2S 
Collective  amount  of  the  three  last  items  at  Auburn, 

on  an  average  of  three  years,  14,187  74 


'        Total,  .<5' 132,471  50 

Which,  divided  by  745,  the  average  number  of  prisoners,  makes 
about  .$177  81  per  annum,  as  the  expense  of  each  prisoner. 

For  a  few  years  after  the  first  establishment  of  our  state  prison,  the 
institution  seems  to  have  realized  all  the  most  sanguine  hopes  of  its 
humane  projectors.  The  name  of  it,  inspired  some  dread  among 
criminals,  and  its  government  was  conducted  with  a  degree  of  zeal 
and  attention  which  often  gives  flattering  success  to  new  institutions, 


93 


but  which  can  hardly  be  expected  to  last  always.  Accordingly  in  the 
report  of  1 803,  we  find  that  the  labour  of  the  convicts  came  within 
a  small  amount  of  the  expense  of  their  sustenance,  and  the  inspectors 
express  an  opinion,  "  thai  no  penal  system  in  any  state  was  less  ex- 
pensioe,  or  more  fully  answered  the  intended  purpose."  But  this  re- 
port contains  the  first  ominous  intimation  that  "  there  will  soon  be  a 
want  of  room." 

For  eighteen  successive  years  since  that  time,  the  state  prison  re- 
ports exhibit  a  distressing  struggle  against  embarrassments  and  diffi- 
culty of  every  kind.  They  state  the  overwhelming  number  of  con- 
victs ;  their  profligate  and  abandoned  character  ;  the  impossibility  of 
making  their  labour  maintain  them  ;  pecuniary  embarrassment  in  the 
affairs  of  the  prison ;  enormous  demands  upon  the  public  treasury, 
without  the  intermission  of  a  year ;  new  and  fruitless  endeavors  to 
make  labour  productive ;  the  fearful  progress  of  the  prisoners  in  cor- 
rupting one  another ;  and  finally,  fires  and  dangerous  insurrections. 
The  committee,  in  order  to  justify  this  general  description,  crave 
leave  to  go  a  little  more  into  detail,  and  to  quote  particular  examples, 
to  justify  their  assertions  from  the  official  reports  contained  in  your 
journals. 

In  1804;,  the  inspectors  and  agent  mention  a  destructive  fire;  losses 
by  bad  debts  ;  pecuniary  embarrassment,  and  a  balance  for  the  sup- 
port of  the  prisoners,  of  eleven  thousand  dollars  beyond  the  produce 
of  their  labour. 

In  1805,  the  number  had  greatly  increased  ;  the  prisoners  had  cost 
more  and  earned  less,  than  the  preceding  year,  and  of  course  the 
balance  against  their  labour  was  increased. 

In  1806,  the  officers  complain  that  more  room  will  be  wanted. 
They  state  that  the  propensity  to  vice  is  much  increased  by  indiscrim- 
inate confinement ;  and  that  "  lessons  of  infamy,"  are  inculcated, 
and  little  reformation  is  seen  ;  and  they  recommend  that  no  person 
sentenced  for  less  than  five  years,  be  sent  to  the  state  prison. 

In  1807  and  1808,  the  vices  of  the  system  seem  to  have  developed 
themselves  more  fully.  The  number  of  prisoners  was  so  great  as  to 
crowd  the  hospital  with  sick,  and  more  than  20,000  dollars  was  want- 
ed, beyond  their  labour,  for  their  support.  The  report  suggests  the 
benefit  of  solitary  confinement  in  the  several  counties,  and  complains 
of  the  great  number  of  convictions  which  were  actually  cases  of  second 


94 


offences,  though  not  known  to  the  court  to  be  so  at  tlie  time  of  trial. 
About  this  time,  necessity  iutrotluced  the  regular  practice  of  granting 
parduns  to  so  many,  as  to  make  the  total  number  of  discharges  equal 
to  the  commitments,  and  this  has  continued  to  the  present  time. 

In  1809,  was  the  first  suggestion  of  another  state  prison  in  the  inte- 
rior of  the  state. 

In  1810,  the  agent  complains  that  the  prisoners  are  so  numerous 
that  they  cannot  be  employed  to  advantage,  and  yet  in  this  year  1 30 
pardons  were  granted  ;  the  number  of  convicts  received  was  171. 

In  1812,  the  report  pressingly  urges  the  evil  of  crowding  so  many 
convicts  together ;  and  remarks  that  the  oldest  and  greatest  offenders,  ' 
corrupt  and  demoralize  the  younger,  and  again  urges  the  necessity  of 
another  state  prison. 

In  1813,  another  fire.  '  p 

In  ISli,  it  is  stated  many  are  committed  for  second  and  third  offen- 
ces ;   an  account  is  given  of  the  alarm  of  the  citizens  at  the  semi-  * 
annual  visit  of  the  judges,  when  forty  or  fifty  of  the  best  prisoners  are  *' 
usually  recommended  for  pardon,  and  of  course  sent  back  into  so- 
ciety. ' 

In  1815  and  1816,  the  number  of  convicts  continued  to  increase;  " 
and  there  is  renewed  urgency  to  have  the  bounds  of  the  prison  en- 
larged,  or  a  new  one  built.  A  suggestion  is  made,  that  there  is  no  « 
competent  punishment  for  prisoners  setting  fire  to  the  prison  ;  and  ^  ■ 
discouraging  proofs  are  given  of  the  hardened  character  of  the  con-  (  ■ 
victs. 

In  1817,  was  laid  before  the  legislature  the  report  of  Messrs.  Bnrt, 
Radcliff,  and  Taylor,  who,  by  a  special  act,  had  been  appointed  com- 
missioners to  examine  into  the  concerns  of  our  state  prison,  will 
liberty  to  visit  that  of  Pliiladelphia.  Your  committee  can  do  no 
more  than  to  quote  a  very  few  of  the  observations  contained  in  that  i 
important  and  very  able  report. 

Those  commissioners  represented  the  want  of  room,  and  the  con-  i 
sequent  necessity  of  pardon,  as  one  of  the  great  evils  of  the  establish-  I  ; 
raent.    They  consider  450  as  the  greatest  number  that  can  be  pro-  i 
fitably  employed  at  labour  in  the  then  prison.    They  mention  the 
striking  fact,  that  of  all  those  who  had  been  committed  for  second 
and  third  offences,  about  two-thirds  had  been  discharged  from  their 
former  sentences  by  pardon ;  and  they  admit  that  the  system  had 


I 


95 


failed  of  e/Tectiog  the  great  object  chiejly  I  view.  Xhey  describe  lae 
prisoners  as  mutually  corrupting  and  being  corrupted  by  each  other, 
and  as  leaving  tlie  prison  more  confuiueJ  in  their  vicious  propensities 
than  when  they  entered  it. 

In  1818,  the  annual  report  avows  that  the  system  is  "far,  very  far, 
from  answering  the  end  intended  that  humane  and  mild  treatment 
has  seldom  reclaimed  the  vicious,  and  that  we  must  have  a  better  sys- 
tem, "  not  a  mere  plan  of  good  living  and  of  light  punishment,  but 
jf  dread  and  terror."  The  prisoners  are  described  as  the  most 
'abandoned  and  profligate  of  mankind,''  and  it  appears  that  of  such 
persons,  the  Governor  was  compelled  to  pardon  and  send  out  about 
280,  in  order  to  make  room  for  300  new  comers.  This  year  there 
was  a  dangerous  insurrection,  and  a  great  amount  of  property  de- 
stroyed. 

In  1819,  it  appears  that  the  late  law  for  punishing  offenders  within 
he  prison  by  whipping,  had  been  applied  in  few  instances  with  salu- 
ary  consequences. 

In  1 820,  Messrs.  Morse,  Cooper  and  Campbell,  who,  by  a  joint 
■esolution  of  the  houses,  had  been  appointed  commissioners,  presented 
I  report  upon  the  state  prison,  abounding  in  valuable  facts  and  ob- 
ervations,  which  your  committee  have  freely  made  use  of.  These 
ommissioners  admit  that  from  some  cause  or  other,  " penitenliary 
mnishments  have  entirely  failed  of  producing  the  results  originally 
tHficipated  from  them  and  that  crimes  have  multiplied  to  an  alarm- 
ng  degree. 

The  prison  reports  of  1820  and  1821,  do  not  vary  essentially  from 
Jl  the  foregoing,  in  their  general  character.  The  hope  is  occasion- 
Uy  and  benevolently  expressed,  that  the  system  will  hereafter  be  so 
lerfected  as  to  answer  the  intended  purpose.  But  the  obvious  fact 
hat  it  has  not  yet  done  so,  is  as  plam  from  the  report  of  1821,  now 
■n  the  table  of  the  Senate,  as  from  any  previous  document.  In  that 
laper  the  convicts  are  described  as  "  desperadoes,^'  with  hearts  "  steel- 
d"  to  moral  feeling  ;  and  of  such  prisoners,  240  have  again  been  let 
oose  upon  society  the  last  year,  by  pardon. 

•It  is  just  to  observe  that  if  the  present  system  has  failed  of  its  ob- 
act,  that  failure  has  not  been  for  want  of  zeal  and  effort  in  the  admin- 
stration  of  it,  directed  by  the  wisdom  and  watchful  care  of  the  public 
:ouncils  for  twenty-five  years.    It  has  been  governed  at  different  times, 


96 


by  persons  of  different  religious  denominations,  and  opposite  political 

parties,  and  by  successive  "  agents,^'  all  of  whom,  in  turn,  have  been 
urged  by  motives  of  benevolence  or  rivalship,  or  the  hopes  of  applause 
and  advancement,  to  give  it  the  utmost  possible  success.  The  history 
of  their  transactions  is,  for  the  most  part,  only  a  history  of  mortifying 
failures  and  disappointed  hopes. 

Neither  have  any  exertions  been  omitted  to  remedy  the  defects, 
which,  from  time  to  time  have  been  observed,  and  to  furnish  motives 
to  the  prisoners  for  reformation.  Expensive  establishments  have  been 
formed  for  their  employment  at  labour,  by  which  they  would  acquire 
the  means  of  an  honest  livelihood.  Schools  are  established  in  the 
prison  ;  a  very  worthy  and  pious  clergyman  is  employed  for  their  re- 
ligious instruction,  and  rewards  are  reserved  for  the  most  deserving, 
derived  from  part  of  the  avails  of  their  labour.  Classifications  have 
been  introduced  according  to  their  supposed  moral  characters ;  an  d 
finally,  laws  have  been  passed  to  exclude  from  the  prisons,  all  who 
are  convicted  of  small  offences.  Still  the  number  of  convicts  is  greater 
now  than  at  any  former  period,  and  they  are  described  in  the  official 
report,  as  "  desperadoes,"  and  "  tJie  most  abandoned  and  'projligate 
of  the  human  race." 

Upon  the  whole  view  of  our  state-prison  system  as  hitherto  con- 
ducted, your  committee  are  compelled  to  adopt  the  conclusion,  that  so 
far  as  reformation  is  concerned,  it  has  wholly  failed ;  and  not  only  so, 
but  that  it  operates  with  alarming  efficacy,  to  increase,  diffuse,  and 
extend,  the  love  of  vice,  and  a  knowledge  of  the  arts  and  practices  of 
criminality. 

In  saying  this,  the  committee  do  not  mean  to  question  but  there  may 
have  been  individual  instances  of  persons,  who  have  led  regular  and 
moral  lives  after  having  been  in  the  state  prison.  Whether  any  con- 
vict of  a  character  habitually  depraved,  has  after  his  discharge  afford- 
ed evidence  of  a  virtuous  life,  they  have  not  learned,  nor  do  they  con- 
sider such  questions  [though  sometimes  urged]  as  important  upon  the 
present  occasion.  For  that  such  cases,  if  they  have  existed,  are  not 
frequent  enough  to  become  an  object  of  attention  in  the  enactment 
of  our  Penal  Code,  is  proven  by  all  our  experience  ;  and  upon  theory, 
it  would  seem  most  unlikely,  that  a  thief,  a  counterfeiter,  or  a  house- 
breaker, should  be  reformed  in  consequence  of  being  shut  up  in  a  spa- 
cious building,  in  ease  and  comfort,  and  in  the  society  of  many  other 


97 


thieves,  counterfeiters,  and  house  breakers.  That  a  whole  communi- 
ty of  intelligent  men  should  have  expected  such  a  result,  exhibits  one 
of  those  instances  of  public  infatuation,  of  which  examples  are  not 
wholly  wanting,  but  which  do  not  the  less  excite  our  wonder  when  the 
illusion  is  past. 

The  question  how  far  this  system  has  operated  by  way  of  preven- 
tion, is  in  a  great  measure  included  in,  and  answered  by,  what  has  al- 
ready been  stated.  But  as  it  is  not  unfrequently  urged,  that  it  has  at 
least  the  praise  of  shutting  out  from  society  a  large  number  of  crimi- 
nals who  would  otherwise  be  preying  upon  community,  the  commit- 
tee think  it  right  to  go  into  some  calculations,  which  will  show,  as 
they  think,  that  the  number  of  convicts  at  liberty,  is  much  greater 
than  that  of  those  who  are  in  confinement. 

The  entire  number  of  prisoners  who  have  been  discharged  by  par- 
don, was  before  stated  at  2,819.  But  of  those,  it  is  obvious  that  many 
would  have  been  discharged  by  the  expiration  of  their  sentences,  and 
that  from  the  residue  a  certain  deduction  must  be  made  for  deaths. 

The  annual  returns  do  not  furnish  the  elements,  from  which  an  aC' 
curate  calculation  can  be  made  of  the  number  of  living  convicts,  ac- 
cording to  the  principles  in  use  among  those  who  calculate  the  prob- 
able duration  of  human  life  :  But  the  committee  have  attempted  to 
find  the  probable  average  time  of  the  commitments  for  each  j'ear ;  in 
doing  which,  they  allow  twenty  years  each  for  the  complement  of  the 
fives  of  those  prisoners  who  are  committed  for  life. 

They  further  find,  on  an  estimate  of  the  deaths  for  twenty  years 
past,  that  the  average  number  of  deaths  is  one  to  every  twenty-seven 
prisoners  each  year,  or  a  little  less  theui  4  per  cent. 
;  Estimating,  therefore,  the  commitments  of  each  year  by  their  aver- 
age duration,  and  deducting  deaths  according  to  the  aforesaid  ratio, 
the  committee  calculate  that  the  number  of  prisoners  who  ought  to 
have  been  in  confinement  on  the  31st  of  December  last,  would  be 
2,080,  and  as  no  more  than  817  were  in  fact  in  prison,  it  would  follow 
that  more  than  1200  are  at  large.  That  is,  for  two  convicts  who  are 
in  confinement,  there  are  three  at  liberty,  who  ought  to  be  in  prison^ 
if  there  were  prisons  to  contain  them. 

But  to  sliow  more  clearly  the  increase  of  our  criminal  population. 
It  may  be  interesting  to  estimate,  if  possible,  what  would  be  the  num- 
ber if  the  same  crimes  were  now  ponished  in  the  state  prison  as  for- 

N 


98 


meily.  In  1307,  the  inspectors  stated  that  out  of  190  committed, 
1 14  were  for  small  offences,  and  such  as  have  not  of  late  years  been 
the  subject  of  imprisonment  in  that  prison.  This  statement  is  the 
only  one  which  the  committee  have  found  upon  the  subject.  But  if 
the  number  is  now  supposed  to  be  in  the  same  proportion  as  then,  to 
higher  offences,  we  shall  find  an  additional  corps  of  1200,  who  are 
petty  offenders ;  and  the  whole  number  of  convicts  would  be  about 
3,300.  But  in  1807  the  number  of  prisoners  actually  confined  was 
430,  so  that  the  increase  since  that  time  is  more  than  700  per  cent, 
while  our  population  has  only  increased  in  the  ratio  of 

But  without  including  the  smaller  offences,  it  is  obvious  that  upon 
the  present  system,  the  punishment  of  those  who  have  been  actually 
discharged  by  pardon  for  want  of  room,  would  now  require  two  more 
state  prisons,  at  an  expense  of  half  a  million  of  dollars,  besides  an 
annual  appropriation  of  more  than  ^100,000,  in  the  whole,  for  their 
support. 

In  justice  to  our  own  state  it  is  proper  to  observe,  that  more  than 
half  of  our  convicts  are  persons  who  come  from  foreign  countries  and 
neighbouring  states ;  many  of  them  probably  attracted  by  the  hopes 
of  abundant  plunder,  and  some  no  doubt  by  the  good  reputation 
which  our  state  prison  cannot  fail  to  have  acquired  in  the  community 
of  felons. 

What  is  the  annual  expense  of  supporting  the  convicts  who  are  in 
prison,  has  been  already  stated.  But  if  we  turn  our  attention  to  those 
who  are  out  of  prison,  and  consider  in  what  various  ways  they  dis- 
tress the  community,  by  their  theft,  forgery,  fraud,  and  violence  in  all 
their  forms  ;  harassing  the  toils  of  honest  industry,  and  exhausted  its 
earnings  ;  rendering  property  insecure,  and  protection  expensive ;  we 
must  admit  that  the  tax  paid  for  the  support  of  the  prisoners,  is  one  of 
the  least  evils  of  the  extension  of  criminality. 

Facts  that  are  public  and  notorious,  confirm  the  committee  in  the 
view  they  take  of  this  subject.  Our  newspapers  teem  with  relations 
of  crimes  of  every  dye.  Our  cities,  villages,  and  manufactories  are 
frequ»'ntly  in  flames  ;  and  to  find  secreted  combustibles  is  no  uncom- 
mon occurrence.  It  is  understood  that  connected  bands  of  horse 
stealers  and  counterfeiters  extend  from  Canada,  through  several  parts 
of  the  Union.  The  mails  of  the  United  States  no  longer  afford  secu- 
rity.   Felonies  that  affect  the  stability  of  our  monied  institutions  are 


99 


becoming  common ;  and  the  forgery  of  bank  paper,  is  an  art  so  per- 
fected, as  to  deceive  the  banks. 

The  committee  hesitate  not  to  state  their  opinion,  tiiat  a  govern- 
ment which  fails  to  repress  such  a  course  of  criminality,  fails  also  in 
its  highest  duty — that  of  protection.  They  are  equally  clear  in  the 
opinion,  that  after  having  for  twenty-five  years  employed  our  sympa- 
thies Eind  resources  for  the  comfort  of  the  criminal  part  of  society,  it  is 
now  our  duty  to  look  to  the  innocent;  and  that  the  industrious  classes, 
preyed  upon  by  the  convicts  who  are  out  of  prison,  and  taxed  for  the 
support  of  those  who  are  within,  and  suffering  from  the  insecurity  of 
all  their  means  and  earnings,  are  now  fit  objects  of  our  care. 

In  considering  a  system  of  punishments,  the  committee  have  had 
no  doubt  that  the  question  ought  to  be  symply,  "  what  will  be  most  ef- 
fectual for  the  protection  of  society,  under  the  given  circumstances.'' 
Punishments  too  severe,  are  to  be  equally  avoided  with  those  that  are 
too  mild, /or  they  equally  fail  of  the  object.  But  the  committee  as- 
sert the  right  of  society  to  protect  itself  by  any  such  means  as  may  be 
most  efficient ;  and  they  deny  that  the  criminal  who  makes  war  upon 
mankind,  has  in  this  respect -any  rights,  which  are  not  subordinate  to 
the  higher  rights  of  the  injured  community. 

Punishment  is  not  for  revenge ;  and  rightly  considered,  it  has  less 
reference  to  the  subject  of  it,  than  to  the  spectators.  That  punish- 
ment would  be  most  proper,  which,  with  the  least  suffering  and  pain 
inflicted  upon  the  recipient,  should  make  the  strongest  impression  upon 
the  public  mind. 

But  to  make  any  impression  upon  the  minds  of  either  convicts  or 
the  public,  there  must  be  suffering  ;  and  to  make  any  adequate  im- 
pression,  such  suffering  as  will  excite  feelings  of  terror:  and  the 
highest  and  best  purpose  of  punishment  is  only  then  well  answered, 
when  the  punishment  inspires  the  minds  of  observers,  especially  of 
youth,  whh  a  salutary  horror  of  the  consequences  of  criminality. 

But  whatever  may  be  the  individual  opinion  of  the  committee,  they 
have  borne  in  mind  that  nothing  can  be  made  effectual,  which  the  pub- 
fic  sentiment  does  not  sanction.  They  have  further  considered  the 
necessity  of  putting  an  end  to  that  wasteful  course  of  expenditure, 
which  for  so  many  years  has  exhausted  the  resources  of  the  state  up- 
on prisons  and  prisoners ;  and  they  have  concluded,  that  more  per- 
haps, cannot  usefully  be  done  at  present,  than  to  begin  a  reformation 


100 


which  future  legislatures  may  in  their  wisdom  perfect,  as  time  and  ex* 
perience  shall  enable  them. 

The  most  important  alteration  which  they  have  to  recommend,  is 
the  abandonment  of  labour  as  an  engine  of  punishment,  and  the  sub- 
stitution of  severe  but  short  confinement  in  cells,  with  solitude,  silence, 
darkness,  and  stinted  food  of  coarse  quality.  With  the  abandonment 
of  labour  in  any  prison,  may  be  given  up  a  vast  and  expensive  list  of 
shops,  implements,  inventories  of  stock  and  bad  debts,  with  the  ex- 
penses of  a  guard  ;  a  separate  agent  may  be  dispensed  with,  and  a 
diminution  of  perhaps  half,  effected  in  the  expenses  of  rations  for  thei 
prisoners.  The  necessary  expense  of  keeping  1000  prisoners  in  one 
prison,  will  then  be  a  small  amount  for  each. 

On  the  subject  of  expense,  however,  the  committee  have  gone  into 
some  calculations,  the  results  of  which,  they  hope  will  not  be  too  pro- 
lix to  be  submitted  to  the  Senate. 

According  to  the  report  from  the  Auburn  prison,  the  committee 
understand  that  down  to  the  last  year,  there  have  been  constructed 
286  cells  for  solitary  confinement,  at  an  expense  of  about  $"22,000, 
making  something  less  than  ^80  for  each  cell. 

An  eminent  master  builder  has  been  engaged  to  make  an  estimate 
of  the  expense  of  building  cells  in  the  yard  of  the  state  prison  at  New- 
York,  and  he  has  furnished  the  committee  with  a  very  detailed  and 
satisfactory  calculation,  shewing  that  a  block  of  144  cells  will  there 
cost  about  $24,000,  or  $166  to  each  cell. 

It  appears  by  the  Auburn  report,  that  the  rations  for  the  prisoners 
are  furnished  at  4  1-2  cents  each,  (not  including  the  hospital,)  and 
that  they  consist  of  a  full  supply  of  good  provisions,  equal  to  the  army 
rations.  Those  at  New- York  are  now  furnished  at  six  cents  each, 
and  the  committee  presume  are  equally  sufficient  in  quantity,  and  good 
in  quality. 

It  is  believed  to  be  no  unreasonable  estimate,  if  we  suppose  that 
prisoners  in  close  confinement,  without  exercise,  and  intentionally 
stinted  as  to  food,  (and  that  food  of  coarse  quality,)  may  be  fed  at 
half  the  above  prices  respectively.  The  experiments  of  Count  Rum- 
ford  upon  the  economy  of  food  and  preparation,  would  tend  to  the 
same  conclusion. 

In  solitary  confinement  there  need  be  very  little  or  no  expense  for 
clothing ;  in  a  great  majority  of  cases  their  own  clothing  will  be  suffi- 
cient ;  especially  as  the  time  of  imprisonment  is  intended  to  be  short. 


101 


But  the  greatest  saving  in  both  prisons,  will  be  in  dispensine  with 
the  guards,  which  in  the  two  prisons  together ,  now  cost  about  $10,000 
annually. 

Assuming  these  data,  therefore,  the  committee  offer  the  following 
calculation  of  the  expense  of  keeping  500  prisoners  in  solitary  con- 
finement in  New-York,  and  500  more  at  Auburn : 

Estimate  for  500  prisoners  in  New-York. 
182,500  rations,  at  3  cents,  <^5,475 
Hospital,  suppose  1,000 
Fuel,  suppose  1,000 
Officers,  viz: 

1  Agent  and  keeper,  1,400 
I  Clerk,  600 
Deputy  keeper,  600 
12  Turnkeys,  500,  6,000 
Board  of  Physicians,  250 
Chaplain,  250 

  9,100 


$16,675 


Which  gives  to  each  convict  an  annual  expense  of  S3  15 

Add  for  the  interest  of  the  cost  of  a  cell,  at  7  per  cent.  II  62 
Making  for  each  prisoner,  which  however  is  exclusive  of 

the  fees  of  sheriffs  and  expenses  of  prosecution,  and  — — 

of  the  county  expenses  before  conviction,  $44  75 

Estimate  for  500  prisoners  at  Auburn. 
182,500  rations,  at  2  1-2  cents,  4,106  25 

Hospital,  suppose  1,000 
Fuel,  suppose  500 
Officers,  viz : 

Vgent  and  keeper,  1,000 
lerk,  600 
Deputy  keeper,  750 
2  Turnkeys,  at  350,  4,200 
Joard  of  Physicians,  100 
Chaplain,  150 

  6,500 


$12,406  28 


102 


uli 


Which  makes  for  each  prisoner,  24  81 
Add  lor  interest  of  the  cost  of  a  cell,  at  7  per  cent.  6  60 
Total  amount  of  expense  of  a  prisoner  at  Auburn,  exclu- 
sive of  the  fees  of  sheriffs  and  expenses  of  prosecution,   

and  the  county  expenses  before  conviction,  $30  41 

From  this  statement  it  would  appear  that  the  cheapness  of  living, 
makes  a  difference  of  about  one  third  in  favour  of  Auburn  ;  and  it  is 
also  obvious,  that  if  all  our  prisoners  could  be  confined  under  the  care 
of  one  set  of  officers,  it  would  produce  a  further  saving.  But  to  coun- 
tervail that  saving,  the  expense  of  transporting  the  convicts,  (the 
greatest  number  of  whom  always  come  from  the  city  of  New- York,) 
must  be  taken  into  the  account.  Upon  the  whole  view  of  this  subject, 
therefore,  the  committee  do  not  doubt  but  it  will  be  the  permanent 
policy  of  this  state  to  preserve  a  prison  in  or  near  New- York. 

There  will  always  be  a  certain  number  of  criminaN,  whose  arts  and  I"? 
practices  are  so  dangerous  to  society,  that  they  ouirhl  never  to  be  left 
at  large.  But  if  such  convicts  are  imprisoned  for  life,  it  would  be 
too  vindictive  to  submit  them  to  severe  treatment  intended  for  other 
criminals,  whose  term  of  confinement  would  be  shorter.  They  ought 
therefore  to  be  allowed  labour,  but  that  labour  should  still  be  severe 
and  even  then  it  should  be  allowed  only  as  a  favour,  and  upon  the 
strict  condition  of  their  earning  their  subsistence. 

Should  the  system  recommended  by  your  committee,  go  into  opera- 
tion, they  hope  and  believe  that  the  number  of  these  prisoners  for  > 
life  will  not  be  very  large. 

As  the  system  so  long  and  fully  established  in  the  New-York  pri- 
son, will  (with  some  increase  of  severity)  answer  the  intended  pur 
pose,  the  committee  think  that  the  present  manufacturing  establish- 
ments in  that  prison  should  be  continued.  But  they  beg  to  be  under- 
stood as  recommending  this,  merely  as  a  necessary  aUeviation  of 
imprisonment  for  life,  and  not  at  all  as  partaking  of  the  nature  oi' 
punishment. 

At  the  same  time,  the  committee  think  it  desirable,  that  so  soon  as 
the  funds  of  the  state  will  allow  it,  there  should  be  built  in  the  New- 
York  prison  a  block  of  about  2(K)  solitary  cells,  which  may  be  done, 
either  by  taking  out  the  floors  and  partitions  in  some  part  of  the  old 
prison,  and  replacing  them  with  cells,  or  by  a  new  building.  So  soon 
as  this  system  shall  have  goae  fully  into  effect  in  New-York,  and  the 


ill* 


103 


Dumber  of  working  prisoners  shall  have  become  considerably  reduced, 
ilie  committee  suppose  that  the  guard  will  be  dispensed  with,  which 
will  make  a  saving  of  nearly  7000  dollars  a  year.  But  as  an  addition- 
al  security,  they  would  make  it  death  for  any  prisoner  who  is  allowed 
to  work,  to  break  the  prison,  or  escape  from  it. 
On  the  whole,  therefore,  the  plan  which  the  committee  would  re- 
I  spectfully  recommend  to  the  consideration  of  the  legislature,  is,  that 
prisoners  from  any  part  of  the  state  may  be  sent  to  either  prison  ; 
those  for  life  to  New- York,  at  labour  ;  those  for  limited  terms  of  con- 
finement to  the  solitary  cells,  and  of  course  to  Auburn,  except  so 
many  from  the  southern  counties  as  there  may  be  solitary  cells  for,  ia 
the  New- York  prison. 

As  to  the  economy  of  this  proceeding,  there  is  one  other  considera- 
tion which  the  committee  wish  to  present.  It  may  be  seen  from  the 
foregoing  statements,  that  the  average  number  of  prisoners  for  six 
years  past  being745,and  theaverage  expense  of  transportation  $9,704, 
it  follows  that  the  average  of  expense  upon  the  prisoners  is  at  the 
rate  of  about  thirteen  dollars  each,  per  year,  for  carrying  them  to 
■■iion.  Now  the  interest  of  the  money  necessary  to  build  a  solitary 
jil,  even  in  New-York,  has  already  been  shewn  to  be  but  ^11  62. 
I'he  committee  believe  that  the  expense  of  transportation  may  be  di- 
ninished,  and  they  intend  to  propose  it.  But  on  the  other  hand,  if 
he  terms  of  imprisonment  shall  be  shortened,  and  numbers  of  those 
vho  now  are  at  large  shall  be  returned  for  second  and  third  offences, 
is  may  be  expected,  it  will  probably  follow  at  first,  that  the  number 
0  be  transported  will  be  increased. 

If  this  should  be  so,  it  would  furnish  an  additional  motive,  on  the 
core  of  economy,  for  building  the  cells  in  New-Vork  as  soon  as  pos- 
ible ;  because  the  annual  expense  of  transporting  the  prisoners  will 
till  farther  exceed  the  annual  interest  of  the  cost  of  cells  for  theui. 
Ind  the  committee  think  it  certain  that  the  annual  expense  of  trans- 
ortation  will  be  increased,  till  ^he  efficacy  of  the  intended  system 
,  ball  be  felt  in  deterring  criminals  from  crimes,  or  driving  them 
t  >  other  states  and  countries,  from  whence  the  major  part  of  tbtm 
ame. 

On  this  subject  of  expense,  the  committee  beg  to  be  indulged  in 
taking  another  remark,  to  shew  ho<v  considerable,  even  at  the  lowest, 
;  the  cost  to  which  a  felon  subjects  the  state. 


104 


The  forejfoing  estimate  for  the  annual  expense  of  a  prisoner 

in  a  solitary  cell,  in  the  New- York  pnson,  is  $43  75 

Do.  average  of  transportation,  13 
Do.  of  other  expenses  by  sheriffs,  not  susceptible  of  exact 

ralrulation,  but  suppose  half  of  the  last,  6  50 

Do.  of  district  attornies  for  prosecution,  by  calculation  ac- 
fiirding  to  the  average  of  the  last  six  years,  18 
Expenses  to  the  county  before  ronviction,  including  the 
charges  of  commitment,  board  in  gaol,  compensation 
to  poor  witnesses,  &c.  &c.  These  charges  are  not  sus- 
ceptible of  any  calculation,  but  can  hardly  be  conjec- 
tured to  be  less  than  20 


f 101  25 

Then  it  appears  that  every  profligate  who  chooses  to  commit  a 
crimes,  can  subject  this  community  to  a  taxation  of  more  than  100 
dollars  for  his  support  a  year  ;  and  that  our  800  convicts,  whose  sup- 
port now  comes  to  nearly  200  dollars  each  per  annum,  will  still,  after 
every  practicable  diminution  of  expense,  cost  as  much  money  as  would 
prepare  800  of  the  youth  of  our  country  for  lives  of  public  usefulness,' 
by  an  education  at  the  colleges. 

The  contemplated  alteration  in  the  method  of  punishment  will  re- 
quire that  laws  on  that  subject  should  be  re-modeled  ;  and  the  com- 
mittee think  they  may  be  greatly  simplified.  They  cannot  perceive 
the  reason  of  the  many  and  various  grades  of  punishment  which  we 
have  enacted,  when  probably  no  human  discernment  can  so  graduate  *• 
the  turpitude  of  crimes,  as  to  show  why  any  given  offence  among  so 
many,  should  receive  such  a  particular  measure  of  infliction,  rather 
than  one  a  little  greater  or  a  little  less. 

The  committee  therefore  propose,  that  for  crimes  above  petty  lar- 
ceny,  not  punishable  with  death,  there  be  but  three  grades  of  punish* 
ment ;  and  accordingly  they  throw  all  offences  punishable  by  the 
slate  prison,  into  three  classes,  namely — the  highest,  the  lowest,  and 
an  intermediate  clans,  between  those  extremes. 

They  propose  also,  that  there  be  three  grades  of  punishment  in  the 
cells,  as  particularly  specified  in  the  bill  they  intend  to  offer  ;  and' 
that  the  court  passing  sentence  have  power,  according  to  the  nature^ 
and  aggravation  of  the  case,  to  subject  the  ottender  to  either  grade  of'  r' 


105 


punishment,  bat  no*  to  control  the  duration  of  it,  which  is  always 
to  be  fixed  within  certain  limits,  by  law- 

They  propose  farther,  that  convicts  i-n  the  New- York  prison,  who 
are  permitted  to  labour  should  be  subjected  to  a  more  rigorous  disci- 
pline, with  coarser  food,  but  in  plenty,  till  the  net  income  shall  meet 
the  expenses  of  food  and  clothing. 

The  committee  are  fully  persuaded  that  this  object  is  easily  attain- 
able, and  they  recommt-nd  that  it  bf-  imperatively  required.  And 
they  here  observe,  that  a  further  reason  for  keeping  all  the  labouring 
convicts  in  New-York  is,  that  food  of  a  coarse  qu»liiy  can  always  be 
procured  at  a  very  luw  rate,  whereas  in  the  countrj  no  such  selection 
of  food  ran  be  made. 

The  committee  recommend  that  no  m^'O'factures  be  carried  on 
in  the  Auburn  prison,  unless  perhaps  -o  furnish  ti><;  convicts  witli 
clothing. 

They  also  propose  that  the  la«^  should  be  so  amended,  that  con- 
ncts  may  be  sent  from  any  pa*      '''e  state  to  either  prison,  accord- 
ng  to  the  intended  mode     punishment,  and  having  reference  also 
the  room  which  eithe*  prison  may  from  time  to  time  afford  ;  and, 
better  to  enable  "Oe  courts  to  know  the  state  of  the  prisons  in 
bese  respects.  th*t  returns  of  the  number  of  prisoners  and  of  va« 
t  rooms  and  cells,  be  furnished  regularly  to  the  clerks  of  courts. 
It  is  hoped  that  these  regulations,  if  adopted,  would  enable  the 
ourts  so  to  regulate  the  place,  duration,  and  severity  of  punishment, 
lat  pardons  will  not  become  necessary  for  want  of  room  in  the  pri- 
ms. 

n  pursuance  of  these  ideas,  the  committee  beg  leave  to  recommend 
at  a  sufficient  appropriation  be  maile  to  finish  the  block  of  cells  be- 
ta at  Auburn,  and  not  only  so,  but  to  finish  it  in  one  season.  From 
information  of  some  very  respectable  and  judicious  men  concerned 
the  government  of  that  prison,  the  committee  are  satisfied  that  the 
re&sary  intermixture  of  mechanics  and  labourers  with  the  prisoners 
tie  building  is  going  on,  tends  to  the  destruction  of  all  discipline; 
unless,  therefore,  the  cells  are  finished  during  the  coming  season, 
operation  of  the  system  proposed,  must  be  deferred  for  two  years  ; 
1  in  the  mean  time  it  is  probable  that  the  prison  will  overflow  with 
mbers.    The  views  of  the  committee  as  to  building  of  solitary 
U  in  the  Mew-York  prison  also,  have  been  already  expressed^ 


106 


When  lliesc  improvements  are  once  completed,  the  committee  h*pe 
that  our  penal  &y^lclu  may  he  so  administered  as  to  require  no  addi- 
tional state  prisons,  and  but  a  moderate  annual  expense.  They  can- 
not doubt  that  the  operation  of  the  system  will  greatly  diminish  the 
number  of  criminals, 

The  committee  are  of  opioion  that  the  su-rgestion  of  the  inspectors 
at  Auburn,  relative  to  the  appointment  by  the  legislature,  of  an  annual 
committee  to  visit  both  prisons,  is  well  worthy  of  attention.  In  thi^ 
way,  uniformity  of  discipline  might  be  introduced,  and  the  improve- 
ments in  either  pnson  be  extended  to  the  other.  Besides  which, 
your  committee  beleve  that  the  authority  of  a  legislative  committee 
%vould  be  more  competent  to  introduce  the  necessary  rigour  of  dis- 
cipline, and  strictness  o?  economy,  than  that  of  the  local  inspectors 
can  be. 

The  inquiries  of  the  commit^g  have  most  abundantly  satisfied  them, 
that  the  practice  of  allowing  visit*,ts  to  see  the  interior  of  the  prison, 
and  the  prisoners,  is  of  most  injurious  consequence.  From  th«. 
amount  received  for  ticket  fees,  it  wouii  seem  that  nearly  8000  perr 
sons  in  a  year,  or  about  twenty  per  day,  hatbeen  admitted.  This,  to^ 
the  prisoners,  must  be  a  continual  amusementj  besides  the  facilities 
which  it  cannot  fail  to  afford  for  improper  commuir.cations. 

1  he  committee  recommen  1  that  all  visitants  he  rigorously  excluded,^ 
except  in  special  cases,  to  be  allowed  of  by  the  inspectors ;  and  that 
spectators  be  only  permitted  to  view  the  cells  through  gratings  in  the, 
cuter  wails. 

They  recommend  that  in  each  prison  a  chaplain  and  physician  be 
employed  ;  that  on  a  proper  certificate  from  the  physician,  convicts 
whose  health  is  suffering,  may  be  released  temporarily  from  the  cells, 
the  period  of  which  release  shall  be  added  to  that  of  their  imprison- 
ment; and  that  the  prisoners  be  allowed  such  books  of  religipus  in- 
struction as  shall  be  authorised  on  the  recommendatioQ  of  the  ch9| 
Iain,  by  the  inspectors,  but  no  other  books. 

The  committee  further  recommend  that  provision  be  made  for  tl 
building  of  solitary  cells  at  the  gaols  of  the  respective  counties 
tliat  the  courts  in  their  discretion,  have  power  to  order  criminals  to 
confined  in  those  cells,  and  that  the  expense  of  their  sustenance,  i^t 
exceeding  the  expense  of  vations  at  Auburn,  be  a  charge  against  the 
state  treasury. 


107 


It  appears  that  the  officers  of  the  New-York  prison  have  for  years, 
supposed  that  they  bad  not  the  power  incident  by  commnn  law  to  every 
prison  keeper,  to  correct  his  prisoner,  within  reasonable  bounds,  for 
misbehaviour  ;  and  on  some  application  to  the  legislature,  it  has  been 
alleged  that  this  doctrine  was  indirectly  countenanced. 

If  such  is  the  doctrine,  it  is  wonderful  that  the  prisoners  do  not 
hold  at  least  a  divided  rule  with  their  keepers  in  the  prison.  But 
while  the  committee  deny  that  the  legislature  have  questioned  the 
power,  they  recommend  that  a  declaratory  clause  be  enacted^  con- 
firming it. 

The  last  important  amendment  which  the  committee  have  to  recom- 
mend, relates  to  the  detection  of  former  offenders,  who  are  often  in- 
dicted, and  sentenced  for  punishment  as  for  a  first  offence,  though 
when  they  arrive  at  the  prison,  they  are  recognized  as  ancient  guests. 
In  a  neighboring  state,  they  have  a  regulation  by  which  the  Attorney 
General  is  in  such  case,  to  file  an  information  on  which  the  prisoner 
is  put  on  trial,  merely  to  receive  the  enhanced  punishment  due  to  bim 
as  a  former  offender.  The  committee  recommend  the  adoption  of  a 
similar  law. 

In  the  bill  which  the  committee  have  prepared  for  the  consideration 
of  the  Senate,  are  contained  some  additions  to.  and  alterations  of  the 
Criminal  Code,  which  will  best  appear  from  the  bill  itself;  and  they 
beg  leave  to  observe,  that  in  the  framing  of  that  bill  they  have  deri- 
ved the  greatest  aid  from  a  very  able  report  upon  the  cnminal  law, 
and  from  a  bill,  which  were  drawn  by  a  gentleman  now  holding  an 
executive  office,  and  by  him  reported  in  the  year  1819,  to  the  Assem- 
bly, of  which  he  was  then  a  member. 

The  committee  have  prepared  a  bill  in  conformity  with  the  views 
kerein  expressed,  and  have  instructed  their  chairman  to  ask  leave  to 
biing  in  the  same. 


Kin>  or  THE  AFTENBIX. 


) 


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